Wharton's Amy Sepinwall and Penn Law's Tobias Barrington Wolff discuss the Supreme Court's recent wedding cake ruling.

The Supreme Court’s narrow ruling in favor of a Colorado baker who refused to make a wedding cake for a gay couple leaves open major questions about the right to turn customers away due to religious objections.

In a 7-2 decision in Masterpiece Cakes v. Colorado Civil Rights Commission, the court ruled that baker Jack Phillips faced hostility toward his religious beliefs from the Colorado Civil Rights Commission. David Mullins and Charlie Craig filed a complaint with the commission in 2012 when Phillips refused to make a cake for their wedding citing his Christian faith.

The commission ruled in the couple’s favor, saying that Phillips had violated the state’s anti-discrimination law. Phillips appealed to the Colorado Court of Appeals, arguing that it was a violation of his constitutional rights to freedom of speech and religion if he were required to bake cakes that went against his religious beliefs. The lower court ruled in favor of the couple, and Phillips appealed to the Supreme Court.

The narrowness of the ruling plus several similar cases making their way through the lower courts pave the way for future days of reckoning over whether businesses have the right to refuse service to LGBT people based on First Amendment protections and how the government can regulate businesses run on religious principles.

The ruling’s focus on the Colorado commission also brings up new questions about the standards for proving claims of bias, according to Wharton legal studies and business ethics professor Amy Sepinwall and University of Pennsylvania law professor Tobias Barrington Wolff.

Sepinwall and Wolff discussed the implications of the case and how the Court might become involved with the issue again in the future on the on the Knowledge at Wharton show on Wharton Business Radio on SiriusXM channel 111. (Listen to the full podcast using the player at the top of the page.)

“The case leaves open a good number of the most difficult and important issues, and the court is likely to see those in the very near future.” –Amy Sepinwall

“The case leaves open a good number of the most difficult and important issues, and the court is likely to see those in the very near future,” Sepinwall said. “In fact, there is a case in Washington State involving a florist that has raised claims very similar to what [Phillips] raised….”

Potential Impacts

Justice Anthony Kennedy wrote the majority decision for the Court, saying that the Colorado Civil Rights Commission hearing included “inappropriate and dismissive comments” from one commission member that compromised the “neutral and respectful consideration” to which Phillips was entitled.

“… The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection,” Kennedy wrote.

Although the ruling avoids many of the broader questions many had hoped it would settle, Wolff noted that the focus on the hearing before the Colorado commission has some potentially significant implications.

“It’s a well-established principle that if you have discrimination or hostility toward a minority group or towards particular religious group in the administration of government policies then that raises a constitutional problem,” he said. “The question is how do you prove that? What events, what evidence, what facts give you a basis for saying that kind of discrimination or that kind of hostility is present?”

Wolff said the evidence used by the Supreme Court to argue that Phillips did not have his case heard by an unbiased tribunal was, “one could argue, a relatively thin record of hostility…. One of the things I think we’re going to be talking about going forward in relation to this ruling is what impact it has on the evidentiary standards that you have to satisfy when you’re making a claim of bias in the administration of laws before things like state commission and tribunals.”

Sepinwall noted that statements from a commissioner in Colorado that were quoted by Justice Kennedy in his opinion about religion being used throughout history as a justification for discrimination could be construed in a number of ways.

“The Colorado Court of Appeals had to review the decisions … on what’s called the de novo basis, so basically not according any amount of deference to what the commission had done and instead deciding entirely on its own lights,” she said. “The Court of Appeals … found that the baker was not within his rights to turn the gay couple away and there was no suggestion in the majority opinion the court issued yesterday that it acted with any hostility toward religion.”

“When you’re a business, you’re not engaged in your own act of expression…. You’re selling your artistic and creative skills.” –Tobias Barrington Wolff

Future Questions

Among the major questions the Supreme Court is likely to face in the future is whether businesses can decline to provide goods and services that are artistic expressions worthy of First Amendment protection, which was the argument made by Phillips, who has said he has also declined to make cakes for Halloween because the holiday is at odds with his faith.

“This is an issue that people have pretty visceral reactions to one way or another,” said Wolff, who was the lead counsel on a case in New Mexico involving a wedding photography company that refused to do business with a lesbian couple. “The way I have always thought it makes sense to look at this – and there are some indications of this in Justice Kennedy’s opinion – is that when you’re a business, you’re not engaged in your own act of expression…. You’re selling your artistic and creative skills.”

He noted that others argue that the products and services provided by a baker, a florist, a photographer and others have artistry attached to them and deserve free speech protection. “There is some indication in some of the early passages of the opinion of Justice Kennedy wrestling with those ideas and recognizing that there are some important equality principles here and also principles important for the business owners involved,” he said. “But if you try to translate those into a workable First Amendment doctrine it becomes difficult to know where you’re going to draw the line.”

Sepinwall noted that the distinctions are more subtle and difficult to grasp that many may have thought initially. “I want to allow that whatever the baker is producing might not have the kind of expressive content that a poem would have or a portrait of a couple would have and yet at the same time, to recognize that there is something expressive in any good or service,” she said.

She pointed to the hypothetical example of an African American baker being asked to bake a generic cake for an event organized by the Ku Klux Klan. “I think I have a reason not to want to supply that cake, and it’s not because of anything the cake in its own right is going to express,” she said. “Instead, it’s about what I’m going to be expressing in having provided the cake, namely that I don’t think that this is event is so worthy of my opposition that I should forego the sale.”

Many people would have good reason to not want to be fostering or contributing to an event they oppose, she added. “Then the question becomes what events the government should treat with sympathy, in which of these cases of opposition should the government say, “Look, we see you oppose the event and we’re not going to compel you to provide the good or service.”

In her work, Sepinwall has tried to articulate a distinction that would allow for some refusals “where the good or service is sought for a project that promotes hate.” She noted that there were cases in Colorado cited in the Supreme Court opinion in which a religious customer entered bakeries and asked for cakes with anti-gay messages. The bakers refused to provide the cakes in all three cases.

“We as a society have decided that there are some forms of discrimination that there is a clear consensus about within a community and that we think at least we can … draw these workable distinctions [for].”  –Tobias Barrington Wolff

“They didn’t do so because they were discriminating against the customer on the basis of religion; they did so because they, I think, rightfully recognized that the cakes were offensive,” she said. “I think that’s a really reasonable ground upon which to distinguish what these three bakeries were up to versus what Jack Phillips was up to.”

Wolff noted that the questions that have come up surrounding this case and others like it are not unique and have long been debated in other settings. “We as a society have decided that there are some forms of discrimination that there is a clear consensus about within a community and that we think at least we can … draw these workable distinctions [for],” he said.

But he added that such cases can still be difficult to decide based on the facts. “They are tough questions. These cases have brought a renewed focus on the fact that these are sometimes hard cases,” he noted. “But it would be a mistake to think that therefore what that means is that we just have to have these broad exemptions that allow businesses to turn away whomever they want to, because how can we draw these distinctions? These are the distinctions that we’ve always had to try to draw in administering these really important laws.”

The Supreme Court ruling doesn’t say anything about the right of businesses under the Constitution to turn customers away. What the Phillips case adds to the conversation, Wolff noted, is to say, “Where there’s a dispute about whether a business improperly turned a customer away, they need to have a neutral and unbiased tribunal decide that question.”