What Does the Supreme Court’s Same-Sex Wedding Cake Decision Mean for Small Business?

Date: June 18, 2018

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The Supreme Court recently issued its opinion in one of the closest watched cases of the year. Yet, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission was not the landmark civil rights or religious liberties case that one might have expected. At issue was the question of whether the Colorado Civil Rights Commission violated the First Amendment in its decision penalizing a baker for refusing to bake a wedding cake for a same-sex couple; however, the Supreme Court choose to side-step the question of whether a business owner can (or cannot) invoke religious objections as justification for refusing service to a protected class.

The Commission found that the baker’s conduct was discriminatory and that it violated Colorado law. In response, the baker argued that, as a devout Christian, the state could not force him to make a cake for an event that would violate his religious beliefs. But we will have to wait for another day to get a definitive decision on that question.

Nonetheless, in a 7-2 opinion, the Supreme Court held that the Commission had demonstrated impermissible hostility toward the baker’s asserted religious beliefs. While the opinion stressed that government must act neutrally toward religion in these sorts of proceedings and must avoid even “subtle departures from neutrality,” a strong majority of the Court said that “Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.” This confirms that, at least in most cases, states may enforce laws prohibiting discrimination in places of public accommodation. Further, other portions of the opinion suggest that businesses may face obstacles in invoking freedom of religion as a ground for treating customers unequally: “[I]t is a general rule that [religious and philosophical] objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”

Accordingly, business owners should recognize that the Masterpiece Cakeshop Ltd. decision does not give businesses and employers a greenlight to discriminate against customers, guests, or employees based on sexual orientation or any other protected category. While the Court rebuked the Colorado Civil Rights Commission for failing to properly consider the baker’s constitutional arguments, the Court ordered the Commission to reconsider the case. So, the moral of the story is that businesses should tread carefully. If an issue arises that puts your religious beliefs in conflict with a legal obligation, you should seek legal counsel before acting.

*The NFIB Small Business Legal Center did not participate in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission.

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