Factors relevant to the assessment of governmental neutrality include the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decision-making body. The Constitution commits government itself to religious tolerance.
Masterpiece Cakeshop, Ltd., is a Colorado bakery owned and operated by Jack Phillips, an expert baker and devout Christian. In 2012 he told a same-sex couple that he would not create a cake for their wedding celebration because of his religious opposition to same-sex marriages. At that time, same-sex marriages were not recognized in Colorado. The baker however, did mention he would sell them other baked goods such as a birthday cake. The couple filed a charge with the Colorado Civil Rights Commission (Commission) pursuant to the Colorado Anti-Discrimination Act (CADA), which prohibits discrimination based on sexual orientation in a place of business engaged in any sales to the public and any place offering services to the public. Under CADA’s administrative review system, the Colorado Civil Rights Division found probable cause for a violation and referred the case to the Commission. The Commission then referred the case for a formal hearing before a state Administrative Law Judge (ALJ), who ruled in the couple’s favor. In so doing, the ALJ rejected Phillips’ First Amendment claims that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed, and would violate his right to the free exercise of religion. Both the Commission and the Colorado Court of Appeals affirmed.
In holding that baking a cake for a same-sex wedding would not violate Jack Phillips’ right to free speech and his free exercise of religion, did the Colorado Civil Rights Commission, in effect, violate the Free Exercise Clause?
The Court held that the Commission’s actions in this case violated the Free Exercise Clause. The Court noted that the laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. In the case at bar, the Court ruled that Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case. The Court determined that the consideration Phillips was entitled to was compromised by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. According to the Court, under the Free Exercise Clause, a State had a duty not to base laws or regulations on hostility to a religion or a religious viewpoint. The Free Exercise Clause barred even subtle departures from neutrality on matters of religion, and the official expressions of hostility to the Phillips’ religion in some of the commissioners' comments were inconsistent with the Free Exercise Clause.