Justices to Hear Baker’s Religious Objection to Making Same-Sex Wedding Cake


Can a baker refuse to create a wedding cake for a same-sex couple because their marriage conflicts with his sincerely held religious beliefs? The U.S. Supreme Court will take on this question in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111.

The critical question in the case 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.

Although the case isn't related directly to employment, a ruling in the case could have implications for the workplace. "I would not expect the case to directly affect employment nondiscrimination laws," said Kent Rutter, an attorney with Haynes and Boone in Houston. "But employers should keep an eye on this case anyway, because this decision may provide a barometer of where the Supreme Court stands on LGBT issues."

There is no federal employment law protecting LGBT status. However, activist groups are trying to create one by urging the courts to interpret sex discrimination under Title VII of the Civil Rights Act of 1964 to include discrimination on the basis of sexual orientation, explained Douglas Laycock, a professor at the University of Virginia Law School in Charlottesville, Va.

"There is a pretty straightforward argument for that, but the courts of appeals all rejected it in the '70s and '80s," he said. "Now our understanding of gay rights has changed, and some of the courts are reconsidering." That issue is headed for the Supreme Court in a separate case, though the justices have yet to decide if they will hear the issue (Evans v. Georgia Regional Hospital, No. 17-370).

Federal appeals courts have reached different conclusions on the issue. And the Equal Employment Opportunity Commission and the U.S. Department of Justice have taken conflicting positions on whether Title VII employment protections based on sex cover gender identity. 

The justices will tackle LGBT rights in Masterpiece Cakeshop for the first time since the high court's landmark decision in Obergefell v. Hodges, No. 14-556 (2015), which legalized same-sex marriage nationwide. 

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


In the Masterpiece Cakeshop lawsuit, 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.

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

Craig and Mullins filed a charge claiming 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 Court of Appeals ultimately sided with the couple. "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, adding that the cake's message is more likely to be attributed to the customer than to the baker.

Supreme Court Petition

In his petition to the Supreme Court, Phillips argued that the wedding cake "serves a central expressive component at most weddings and is traditionally served at the reception celebrating the couple's union."

As an artist, "Phillips also honors God through his work by declining to use his creative talents to design and create cakes that violate his religious beliefs," the petition said.

If the justices rule for the baker, it is likely to be on narrow grounds: that this is a wedding, and a wedding is a religious event, or that Phillips is an artist protected by freedom of speech, Laycock said. If they rule for the state, it could be sweeping: that nondiscrimination laws always trump religious liberty. But it could also be a narrow ruling, he noted: that there isn't enough of a speech element here and the state's nondiscrimination law applies broadly enough so that it isn't subject to the First Amendment's free exercise clause.

"It is one small slice of a broad range of issues," Laycock said. "There are lots of ways they could rule, and there could be lots of different implications for the wide range of other issues. It is too early to say."

Oral argument has been set for Dec. 5. That means the justices may issue a decision around March 2018—give or take a month or two, Rutter said.

Points for Employers

Although the Masterpiece Cakeshop case may show where the Supreme Court stands on LGBT issues post-Obergefell, a ruling in the Evans case would be more significant for employers and HR professionals.

The justices could decide anytime between late October and early December as to whether they will hear the Evans case, Rutter said. If they do hear the case, it will likely be decided this term—which ends in June 2018.

In the meantime, it is a best practice for employers to have policies that clearly communicate to employees that the business will not tolerate discrimination of any kind, including discrimination based on LGBT or perceived LGBT status, Rutter said.  "Make sure those policies are known to employees and that employees understand that those policies will be enforced; otherwise, you open yourself up to the risk of claims under Title VII."


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