Document Type


Version Deposited

Accepted for publication (PostPrint)

Publication Date

Spring 2019

Publication Title

Southern Law Journal


In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,[1] the U.S. Supreme Court ruled seven to two that the Colorado Civil Rights Commission (“the Commission”) violated the free exercise rights of a baker, who refused to sell a custom-designed wedding cake to a gay couple, by reflecting hostility toward the baker’s religious beliefs during public hearings in the case and treating him differently from three other bakers who objected to creating wedding cakes with messages expressing derogatory views of same-sex marriage.[2] In reaching its decision, the Court sidestepped the chore of reconciling two fundamental principles: (1) whether the baker’s refusal to create a wedding cake for a same-sex marriage reception was protected by his First Amendment rights to free exercise of religion and against compelled speech, and (2) whether Colorado has authority to protect the rights and dignity of gay people who seek to purchase goods and services for their wedding through its anti-discrimination statute.[3] Instead, the Court ruled the Commission violated its obligation to consider the baker’s sincere religious objections with “the requisite religious neutrality that must be strictly observed.”[4] In doing so, the Court acknowledged it postponed the reconciliation of the protections of free exercise of speech and religion and the protection against discrimination on the basis of sexual orientation to future cases, which “must be resolved 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.”[5]

[1] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 138 S. Ct. 1719 (2018).

[2] Id. at 1729-32. The facts of the Masterpiece Cakeshop case are examined in Part II. Justice Kennedy wrote the majority opinion in which Chief Justice Roberts and Justices Breyer, Alito, Kagan and Gorsuch joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment in which Justice Gorsuch joined. Justice Kagan filed a concurring opinion in which Justice Breyer joined. Justice Gorsuch filed a concurring opinion in which Justice Alito joined. Justice Ginsburg filed a dissenting opinion in which Justice Sotomayor joined.

[3] Debra Cassens Weiss, Supreme Court Cites Agency Hostility in Ruling for Christian Baker, ABA Journal (June 4, 2018), baker_who_refused_cake_


[4] Masterpiece Cakeshop, 138 S. Ct. at 1731. Weiss, supra note 4.

[5] Id. at 1732. Another reported case dealing with a wedding vendor who refused to sell a wedding cake to a same-sex couple is In the matter of: Melissa Elaine Klein, dba Sweetcakes by Melissa, Case Nos. 44-14 & 45-14 (Oregon Bureau of Labor and Industries) (Order dated July 2, 2015), accessed on July 16, 2018 at, in which: (n.b. this link works)

Sweetcakes by Melissa, an Oregon bakery, refused to make a wedding cake for a same-sex couple based on the owners' religious convictions about marriage. The couple filed a complaint with the Oregon Bureau of Labor and Industries, and the ALJ determined the bakery's refusal to make a wedding cake for the couple constituted discrimination based on their sexual orientation, which is prohibited by Oregon's public accommodation law. The ALJ ordered Sweetcakes by Melissa to pay $135,000 in damages to the couple for emotional and mental suffering resulting from the denial of service. The bakery's owners are challenging the Oregon Bureau of Labor's decision in the Oregon Court of Appeals as a violation of their freedom of religion, arguing the First Amendment's protection of religious liberty prohibits such a ruling. Specifically, on appeal, the owners argue the decision violates their rights as artists to free speech, their rights to religious freedom, and their due process rights. It is worth noting, however, that Sweetcakes by Melissa recently closed the bakery.

L. Darnell Weeden, Marriage Equality Laws Are a Threat to Religious Liberty, 41 S. Ill. U. L.J. 211, 218-20 (2017).


Copyright 2019 by Southern Academy of Legal Studies in Business. Authors permitted to upload copies to institutional repositories. Published Vol. 29, Issue 1, Spring 2019, pp. 25-68.