High Court Hears Arguments in Same-Sex Wedding Cake Case

Justice Kennedy is predicted to cast the deciding vote

High Court Hears Arguments in Same-Sex Wedding Cake Case

​The U.S. Supreme Court heard oral arguments on Dec. 5 in a case that addresses the tension between lesbian, gay, bisexual and transgender (LGBT) civil rights under state law and the right to free speech and free exercise of religion under the First Amendment to the U.S. Constitution.

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a Colorado baker refused to create a wedding cake for a same-sex couple because it would conflict with his religious beliefs. The same-sex couple said this violates a state anti-discrimination law—and the Colorado Civil Rights Commission agreed.  

Although the case is not employment-related, the decision could provide a barometer of where the high court stands on LGBT issues, said Kent Rutter, an attorney with Haynes and Boone in Houston.

The justices will weigh in on LGBT rights for the first time since the landmark 5-4 decision in Obergefell v. Hodges, No. 14-556 (2015), which legalized same-sex marriage nationwide. 

 [SHRM members-only toolkit: Managing Equal Employment Opportunity]

Oral Arguments

Justice Anthony Kennedy's vote in Obergefell was determinative of the outcome—and it likely will be in Masterpiece Cakeshop, too. "As usual the swing vote will be Justice Kennedy's," Rutter said. "But this will be a tough case for him to decide," he added, noting that in addition to penning the Obergefell opinion, Kennedy is also "a fierce defender of free speech."

Kennedy asked questions early on that seemed sympathetic to the same-sex couple, noted Steven Collis, an attorney with Holland & Hart in the Denver area.

"If you prevail, could the baker put a sign in his window: We do not bake cakes for gay weddings?" Kennedy asked the baker's counsel. Would that be "an affront to the gay community?"

But later, Kennedy lambasted the state of Colorado, Collis added.

Kennedy said that the state seemed neither tolerant nor respectful of the baker's religious beliefs.

Justice Stephen Breyer appeared to be searching for a compromise that could potentially protect everyone, Collis noted.

If the baker said, "There are a lot of people I don't want to serve, so I'm going to affiliate with my friend, Smith, who's down the street, and those people I don't want to serve, Smith will serve," would that be legal under Colorado law? Breyer asked.

The justices were also clearly grappling with whether baking a cake is speech and where the line should be drawn between unprotected conduct and protected speech under the First Amendment, Collis said.

"Why is there no speech in creating a wonderful hairdo?" Justice Elena Kagan asked.


Denver-area baker Jack Phillips claims that he is an artist and that his Christian faith "compels him to use his artistic talents to promote only messages that align with his religious beliefs," according to his petition to the Supreme Court. He therefore refuses to create products that contain alcohol, celebrate Halloween or communicate messages prohibited by his faith, such as racism, atheism, and marriages that are not between one man and one woman.

Charlie Craig and David Mullins, a same-sex couple, asked Phillips to make a cake for their wedding, but he refused because of his religious beliefs. Phillips said that "he is happy to create other items for gay and lesbian clients"—just not wedding cakes.

The couple claim that Phillips violated the Colorado Anti-Discrimination Act, which prohibits businesses that sell goods and services to the public from discriminating based on sexual orientation—in addition to other characteristics such as disability, national origin and race.

The Colorado Civil Rights Commission agreed with Craig and Mullins, and so did the Colorado Court of Appeals. "We conclude that the act of designing and selling a wedding cake to all customers free of discrimination does not convey a celebratory message about same-sex weddings likely to be understood by those who view it," the court said.

Employment Implications

Masterpiece Cakeshop is a small business that is owned by Phillips and his wife—so a ruling in the case might not guide employers on what to do if an employee refuses to make a product for a same-sex wedding based on religious objections.

Can the chef at the Hilton say, "I don't believe in same-sex marriage and I won't create a cake?" Justice Sonia Sotomayor asked. "And can he be fired?"

The baker's attorney said there may be a religious accommodation that is made to that employee, but in the context of Masterpiece Cakeshop, the Supreme Court has found that corporations have free-speech rights and that closely-held family corporations have free-exercise rights.

"The question about the Hilton chef may not be teed up here, but I wouldn't be surprised if the question makes its way to the court," Rutter said.

Another petition before the high court asks whether the prohibition in Title VII of the Civil Rights Act of 1964 against employment discrimination based on sex includes discrimination based on sexual orientation (Evans v. Georgia Regional Hospital, No. 17-370). The justices will soon decide whether to hear that case.

Was this article useful? SHRM offers thousands of tools, templates and other exclusive member benefits, including compliance updates, sample policies, HR expert advice, education discounts, a growing online member community and much more. Join/Renew Now and let SHRM help you work smarter.


Job Finder

Find an HR Job Near You
Search Jobs

Are you a department of one?

Expand your toolbox with the tools and techniques needed to fix your organization’s unique needs.

Expand your toolbox with the tools and techniques needed to fix your organization’s unique needs.



HR Daily Newsletter

News, trends and analysis, as well as breaking news alerts, to help HR professionals do their jobs better each business day.