Who Knows What Bakery Ruling Means for Future Cases?

Presented with the opportunity to clearly identify the dividing line between religious freedom and gay rights, the Supreme Court on Monday opted instead for confusion.

The 7-2 ruling was a clear victory for Jack Phillips and his business, Masterpiece Cakeshop, which had been sanctioned by the Colorado Civil Rights Commission over his refusal to provide custom decorations for a gay couple’s wedding cake.

But the opinion was in crucial respects narrowly focused on specific facts of that case and the conduct of the commission. It left legal observers to guess about whether other business owners with religious objections to same-sex marriage would win similar cases.

“Who knows?” said Carl Tobias, a law professor at the University of Richmond. “I think it’s narrow, and it’s fact specific … A similar case in the future might be decided differently.”

The majority opinion by Justice Anthony Kennedy goes into detail about how the Colorado Civil Rights Commission handled the case, including statements by a pair of commission members that the majority of justices believed showed bias against Phillips’ religious beliefs.

In the words of Justice Elena Kagan in a concurring opinion, Phillips enjoys constitutional protection against legal decisions that are “infected by religious hostility or bias.”

The court zeroed in on the Colorado commission’s lack of “religious neutrality” in this case but offered no bright lines regarding similar ones.

“Given all these considerations, it is proper to hold that whatever the outcome of some future controversy involving facts similar to these, the Commission’s actions here violated the Free Exercise Clause; and its order must be set aside,” Kennedy wrote.

The swing justice followed that up by pronouncing that the outcome of other similar cases “must await further elaboration in the courts.” He wrote of the need to resolve disputes “with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Tobias predicted that lower courts will struggle in applying that standard to the broad range of challenges that already are bubbling up through the legal system and are all but certain to multiply.

“In a way, this is the easy way out because it [the outcome of the case] was clear, but it doesn’t tell you much about future cases,” he said.

‘We faced death threats.’ Few dispute the sincerity of Phillips’ religious beliefs. He named his business outside of Denver 24 years ago after the biblical principle that humans are God’s masterpiece creation. He keeps his business closed on Sundays and turns down requests for decorations that violate his religious beliefs, including messages involving alcohol, Halloween, and divorce celebrations.

It also includes specially designed cakes celebrating gay weddings. That’s what got him into trouble with the Colorado Civil Rights Commission in 2012 — before the state even recognized same-sex unions.

Faced with a choice of baking cakes for same-sex weddings or baking no wedding cakes at all, Phillips chose the latter — at a cost of about 40 percent of his business and six of his 10 employees.

Phillips thanked the high court.

“It was shocking to me that the government would try to take away my freedoms and force me to create something that went against my faith,” he said in a statement provided by his lawyers. “The government’s hostility directly impacted my family’s shop. We faced death threats and harassment, all for choosing not to design a cake that celebrates one particular event.”

Lawyers from the Alliance Defending Freedom (ADF), which took Phillips’ case to the Supreme Court, told reporters on a conference call Monday that it was a big win for religious liberty.

“Religious hostility has no place in our pluralistic society,” said Kristen Waggoner, senior vice president of the group’s U.S. legal division. “No one should be bullied or banished from the marketplace for peacefully living out their beliefs about marriage.”

In finding that the commission demonstrated bias, the court left unaddressed the central argument on which many court observers thought the case would turn — whether elaborately designed custom cakes amount to speech, and whether forcing a Christian to bake a cake for a gay wedding constitutes impermissible compelled speech.

Justice Clarence Thomas — in a concurring opinion joined by Justice Neil Gorsuch — wrote separately to argue that Phillips had a case on free speech grounds.

Noting the 7-2 margin, however, Waggoner expressed optimism that the ruling will have a far-reaching impact on similar cases percolating through the legal system.

She said she believes the majority opinion adhered to the narrow facts of the case only because it was unnecessary to go beyond them.

“The hostility was so open and obvious in the [Civil Rights Commission] decision, it didn’t need to reach the issues related to whether Jack’s cakes are speech and how that would play out,” she said. “But certainly, I think that the precedent is clear, and that case will be reaching the court at some point.”

‘Ticket good for this ride only.’ Dale Carpenter, a professor at Southern Methodist University’s Dedman School of Law, characterized the ruling as a cautious decision.

“It breaks no new doctrinal ground, as best [as] I can tell,” he told reporters on a call organized by the Federalist Society.

Carpenter, who filed a friend-of-the-court brief arguing that the cake designs did not constitute speech, said the narrow language of the ruling likely means that the case is a “ticket good for this ride only,” and does not guarantee success for future litigants challenging anti-discrimination laws designed to protect the rights of gay people.

But Carpenter said it also means that any future litigant has a chance to prevail. The justices left themselves a great deal of leeway, he said. He said the court seems to be signaling that it will strive for a compromise in which neither advocates for religious freedom nor gay rights supporters will get everything they want.

“I think I lean toward the idea that this is a truly minimalist opinion, but minimalist with hints,” he said.

Kim Colby, director of the Christian Legal Society’s Center for Law and Religious Freedom, agreed the ruling is narrow. But she called it a big victory for religious liberty nonetheless.

Related: Colorado Baker Wins Stunning Court Decision for First Amendment

“Essentially, when you read the opinion you see the court leaves open pretty much every option … I think it’s important to focus on the fact that the court didn’t shut doors here,” she told reporters on the same conference call.

“So I think that’s really good news for religious freedom. It might not be the extremely broad decision that we were possibly hoping for, or many of is would write if we were a justice, but it is still a very important win for religious freedom in a pluralistic society,” she said.

Tobias, the University of Richmond professor, said justices might not have wanted to address all of the possible ramifications that the issue entails. But he added that the court may only have postponed the inevitable.

“They may have to face it even if they don’t want to face it,” he said.

PoliZette senior writer Brendan Kirby can be reached at [email protected]. Follow him on Twitter.