Do Religious Liberties Trump Gay Rights After Supreme Court’s “Masterpiece Cakeshop” Decision?

By: Robert W. Small

In Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission (“Commission”), by a 7-2 vote, the U.S. Supreme Court threw out a decision by the Commission and Colorado’s Court of Appeals, which held that a baker who, on religious grounds, refused to make a wedding cake for a gay wedding violated the Colorado Anti-Discrimination Act (“CADA”). Does this mean that places of public accommodation, such as bakeries and caterers, and employers may refuse to follow state and federal anti-discrimination laws if those laws conflict with their sincerely held religious beliefs? The decision does not mean that, given the narrow grounds on which it rests.

In Masterpiece Cakeshop, the baker routinely sold his products to gays and offered to provide cakes for other events involving the gay couple, such as for showers and birthdays. However, he refused on religious and free speech grounds to bake a wedding cake because he felt doing so constituted his endorsement of gay marriage, which he objected to as a matter of his faith. The Commission found that his refusal violated CADA and imposed substantial penalties, including a two-year reporting obligation to the state each time the Cakeshop refused service to any customer. The owner of the Cakeshop appealed on the grounds that requiring him to make a cake for a gay wedding violated his First Amendment rights to religious freedom and freedom from being compelled to endorse gay weddings by the artistry represented in his cakes, a form of expressive speech.

The Supreme Court avoided, for the time being, deciding definitively if conflict that arises between Constitutionally protected religious and speech rights on the one hand, and laws making it unlawful to discriminate based on sexual orientation, on the other, by finding that the Commission and the Colorado Court of Appeals had not accorded the baker the neutrality required when such bodies considered the scope and effect of religious liberty, but had unconstitutionally substituted their own assessment of the value of the baker’s religious beliefs.  The Court also found an impermissible contradiction in prior cases in which the Commission had refused to find discrimination when bakeries refused customer requests for cakes which contained anti-same-sex-marriage messages. In essence, the Supreme Court did no more than declare that the baker did not get a fair hearing and one consistent with prior Commission rulings.  

Places of public accommodation and Employers should know that prior Supreme Court precedent makes clear that the right to the free exercise of religion may be curtailed by laws of general applicability. That is, laws that apply to all persons of a given class, such as all businesses, generally will be sustained as against the assertion that such a law is a restraint on freedom of religion. For this reason, businesses and employers should use extreme caution in denying equal access and equal treatment to groups of people protected by anti-discrimination laws based on an assertion of religious freedom. Although the exact parameters of the religious freedom defense to anti-discrimination laws have not yet been determined, it is doubtful that the Court will ever hold that such a defense is a complete excuse for non-compliance with such laws.

If you have any questions, or would like additional information, please contact Bob Small, Partner in Reger Rizzo & Darnall’s Employment Practices Group,  at 215.495.6541, or via email at

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