No Wedding Cake for You! Supreme Court Decides Colorado Baker Dispute

August 15, 2018

The U.S. Supreme Court recently weighed in on a case in which a baker’s religious freedom collided with a couple’s sexual orientation. Although the case didn’t involve employment law, similar issues in the workplace have arisen and employers will continue to face such issues. For example, an Indiana teacher just resigned after claiming he was forced to use a transgender student’s preferred name in conflict with his religious beliefs. And following the Supreme Court’s wedding cake decision, a hardware store in Tennessee placed a “No gays allowed” sign in its window. This article covers the Court’s recent decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission and the potential implications when religious beliefs clash with sexual orientation in the workplace.


Masterpiece Cakeshop, Ltd., is a Colorado bakery owned and operated by Jack Phillips, a devout Christian. In 2012, he told a same-sex couple that he wouldn’t create a cake for their wedding celebration because of his religious opposition to same-sex marriage—which Colorado didn’t recognize at the time—but he would sell them other baked goods (e.g., birthday cakes). The couple filed a charge with the Colorado Civil Rights Commission (CCRC) under the Colorado Anti-Discrimination Act (CADA), which prohibits discrimination based on sexual orientation in a place of business that engages in any sales to the public or any place that offers services to the public. Under the administrative review system set up in the CADA, the Colorado Civil Rights Division (CCRD) found probable cause for a violation and then referred the case to the CCRC.

The CCRC referred the case for a formal hearing before a state administrative law judge (ALJ), who ruled in the couple’s favor. In doing so, the ALJ rejected Phillips’ First Amendment claims that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagrees and would violate his right to the free exercise of religion. Both the CCRC and the Colorado Court of Appeals affirmed the ALJ’s ruling.

Supreme Court’s Decision

The Supreme Court held that the CCRC’s actions in this case violated the Free Exercise Clause of the U.S. Constitution. The Court stated that the laws and the Constitution can—and in some instances must—protect gay people and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and sometimes even protected forms of expression.

The Court found that although Colorado law can protect gay individuals’ right to acquire products and services on the same terms and conditions offered to other members of the public, the law must be applied in a manner that is neutral toward religion. The Court emphasized that Phillips’ claim that using his artistic skills to make an expressive statement—i.e., a wedding endorsement in his own voice and of his own creation— has a significant First Amendment speech component and implicates his deep and sincere religious beliefs.

The Court also noted the complexity of Phillips’ dilemma in 2012, before Colorado recognized the validity of gay marriages performed in the state and before the U.S Supreme Court decision recognizing gay marriages in all 50 states. The Court noted that given the state’s position at the time, there was some force to Phillips’ argument that he wasn’t unreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive. While this case was pending, the CCRD concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriage. The Court said Phillips was also entitled to neutral and respectful consideration of his claims by the CCRC.

The basis for the Court’s decision in favor of Phillips was the CCRC’s treatment of his case, which indicated a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. Some of the commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. Their comments cast doubt on the fairness and impartiality of the CCRC’s adjudication of Phillips’ case.

The CCRC ruled against Phillips based in part on the theory that any message on the wedding cake would be attributed to the customer, not the baker. Yet the CCRD didn’t address that point in any of the cases involving requests for cakes depicting anti-gay-marriage symbolism. The CCRD also considered the fact that each bakery was willing to sell other products to the prospective customers, but the CCRC found Phillips’ willingness to do the same thing irrelevant. For those reasons, the Court held that the commission’s treatment of Phillips violated the state’s duty under the First Amendment not to base laws or regulations on hostility toward a religion or a religious viewpoint.

Workplace Considerations

It’s easy to imagine a similar set of facts in which an employee of a bakery is asked to design a wedding cake for a gay couple and refuses to make the cake based on religious grounds. Employers must reasonably accommodate employees’ sincerely held religious practices unless doing so would impose an undue hardship on their business. Whether there is any explicit prohibition in the New Testament against same-sex relationships has been hotly debated, but people who oppose gay marriage can use the Bible to support their view that marriage must be between a man and a woman. It’s conceivable that based on that belief, a court or an administrative agency would find that an employee could resist having to make a wedding cake for a same-sex couple, absent an undue hardship to the employer.

Undue hardship is often difficult to prove in disability or religious accommodation cases. Thus, in most situations, an employer may have to accommodate an employee’s religious beliefs as they relate to rejecting same-sex marriage. Obviously, there aren’t myriad interactions with the public that would allow someone to base a refusal to perform tasks involving same-sex couples on his religious beliefs. For example, unlike making a wedding cake, it’s highly doubtful that an employee of a hardware store could refuse to assist a same-sex couple purchasing items for their home. Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. ___ (2018).

Bottom Line

We live in a polarized society. As progress toward providing complete civil rights to same-sex couples is made, people with strongly held religious beliefs may become more impassioned in opposing such unions. You need to be cognizant of the disparate views your employees may have about same-sex marriage and balance the need to provide a safe and hostility-free workplace to all employees with the duty to accommodate a worker’s religious beliefs when necessary. As administrative agencies and courts grapple with disputes arising out of those issues, we hope to gain more clarity. But until then, each case will need to be addressed carefully because there are never easy choices when individuals’ competing rights are in conflict.

This article, slightly modified to note recent updates, was featured in the July 2018 issue of the Wisconsin Employment Law Letter, which is co-edited by Axley Brynelson Attorneys Saul Glazer and Michael Modl and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.