High court sides with baker who refused gay couple

Narrow ruling leaves open question of religious freedom versus gay rights

WASHINGTON — The Supreme Court on Monday ruled in favor of a Colorado baker who had refused to create a wedding cake for a gay couple. The court’s decision was narrow, and it left open the larger question of whether a business can discriminate against gay men and lesbians based on rights protected by the First Amendment.

The court passed on an opportunity to either bolster the right to same-sex marriage or explain how far the government can go in regulating businesses run on religious principles. Instead, Justice Anthony Kennedy’s majority opinion turned on the argument that the Colorado Civil Rights Commission, which originally ruled against the baker, had been shown to be hostile to religion because of the remarks of one of its members.

At the same time, Kennedy strongly reaffirmed protections for gay rights.

“The outcome of cases like this in other circumstances must await further elaboration in the courts,” he wrote, “all in the context of recognizing that these disputes 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.”

Kennedy often casts the deciding vote in closely divided cases on major social issues. When the court agreed to hear the Colorado case last June, it seemed to present him with a stark choice between two of his core commitments. On the one hand, Kennedy has written every major Supreme Court decision protecting gay men and lesbians. On the other, he is the court’s most ardent defender of free speech.

On Monday, Kennedy chose a third path, one that seemed to apply only to the case before the court.

Writing for the majority in the 7-2 decision, he said the Civil Rights Commission’s ruling against the baker, Jack Phillips, had been infected by religious animus. He cited what he said were “inappropriate and dismissive comments” from one commissioner in saying that the panel had acted inappropriately and that its decision should be overturned.

“The neutral and respectful consideration to which Phillips was entitled was compromised here,” Kennedy wrote. “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.”

That passage echoed his plea for tolerance in his majority opinion in 2015 in Obergefell v. Hodges, which recognized a constitutional right to same-sex marriage. In that decision, he called for “an open and searching debate” between those who opposed same-sex marriage on religious grounds and those who considered such unions “proper or indeed essential.”

When the Colorado case was argued in December, Kennedy seemed frustrated with the main choices available to him and hinted that he was looking for an off-ramp. His questions suggested that his vote had not been among the four that had been needed to add the case to the court’s docket.

The breadth of the court’s majority was a testament to the narrowness of the decision’s reasoning. Chief Justice John Roberts and Justices Stephen Breyer, Samuel Alito, Elena Kagan and Neil Gorsuch joined Kennedy’s majority opinion. Justice Clarence Thomas voted with the majority but would have adopted broader reasons.

Justice Ruth Bader Ginsburg, joined by Justice Sonia Sotomayor, dissented.

The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111, arose from a brief encounter in 2012, when David Mullins and Charlie Craig visited Phillips’ bakery, Masterpiece Cakeshop, in Lakewood, Colo. The two men were going to be married in Massachusetts, and they were looking for a wedding cake for a reception in Colorado.

Phillips turned them down, saying he would not use his talents to convey a message of support for same-sex marriage at odds with his religious faith. Mullins and Craig said they were humiliated by Phillips’ refusal to serve them, and they filed a complaint with Colorado’s Civil Rights Commission, saying that Phillips had violated a state law barring discrimination based on sexual orientation.