On June 4, 2018, former United States Supreme Court Justice Anthony Kennedy’s 7-2 opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission shocked the human rights and LGBT communities.  With nearly 100 amicus curiae briefs filed—47 supporting the appellant and 45 supporting the appellee—expectations ran high that Masterpiece would be a turning point in LGBT rights jurisprudence. Many believed that Masterpiece could be the vehicle through which either (a) the Supreme Court would legitimize the refusal of services to LGBT individuals under a freedom of religious beliefs theory or (b) the Supreme Court would declare LGBT individuals must be accommodated regardless of the religious beliefs of the service provider. Justice Kennedy developed a reputation as an advocate of the LGBT community with his influential opinions in Lawrence v. Texas (2003; striking down a Texas sodomy law and legalizing same-sex sexual activity in every state in the United States), United States v. Windsor (2013; holding that restricting federal interpretation of “marriage” and “spouse” to apply only to opposite-sex unions was unconstitutional), and Obergefell v. Hodges (2015; holding that the fundamental right to marry is guaranteed to same-sex couples) which set the stage for dashed hopes that the conflict between religious freedom and LGBT rights might finally be settled.

But when Masterpiece was decided, Justice Kennedy and six of his colleagues held against a same-sex couple who were denied service at a Colorado bakery.  Charlie Craig and David Mullins approached Masterpiece Cakeshop owner Jack Phillips to commission a cake to celebrate their wedding.  Phillips refused, citing his Christian beliefs in explaining that he did not create wedding cakes for same-sex couples.  Craig and Mullins filed a complaint with the Colorado Civil Rights Commission, which found in the couple’s favor.  Phillips appealed to the Colorado Court of Appeals, which upheld the ruling.  The Supreme Court of Colorado declined to hear an appeal, so Phillips appealed to the United States Supreme Court.

In Phillips’ brief to the Supreme Court, his attorneys argued that forcing Phillips to create a custom wedding cake violated the Free Speech or Free Exercise clauses of the United States Constitution.  The brief reasoned that “Phillips has been an artist using cake as his canvas,” and that “the First Amendment guarantees him [the freedom to refuse service] because his wedding cakes, each one custom-made, are his artistic expression.”  Additionally, the brief opined that “a ruling against Phillips threatens the expressive freedom of all who create art or other speech for a living.”

The Colorado Court of Appeals rejected Phillips’ free speech argument.  It held that “[Phillips] does not convey a message supporting same-sex marriages merely by abiding by the law” and creating wedding cakes.  On appeal, Phillips pointed out that the Supreme Court’s compelled-speech doctrine forbids the Colorado Civil Rights Commission from demanding that artists design custom expression that conveys ideas they deem objectionable.

In response, Craig and Mullins argued that Phillips “declined to serve Craig and Mullins without any consideration of whether the cake would be pre-made or custom-made, and regardless of what elements or designs the particular cake would include.  [Phillips] acted not based on the design of the requested cake or the message it might have conveyed but based on a blanket policy of refusing to sell a wedding cake of any kind to any same-sex couple.”  Additionally, Craig and Mullins pointed out that “[P]hillips himself may not have been compelled to create ‘cakes with offensive written messages’ such as ‘anti-American or anti-family themes, atheism, racism, or indecency.’  But this is not because of the identity of the customer; it is because of the specific messages and designs that the customer would be requesting.”

Justice Kennedy narrowly adopted Phillips’ argument and held that the Colorado Civil Rights Commission violated the Free Exercise Clause of the First Amendment of the United States Constitution.  Kennedy focused on several exchanges at the commission hearing, including a comparison of “[Phillips’] invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.”  Kennedy also pointed to what he believed to be disparate treatment by the commission of cases involving objections to anti-gay messages who prevailed in their refusal to serve the customer.  Kennedy wrote that “the Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not the baker.  Yet the [commission] did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism.”

Kennedy explained that “Phillips’ religious objection was not considered with the neutrality required by the Free Exercise Clause,” and that “[t]he official expressions of hostility to religion in some of the commissioners’ comments—comments that were not disavowed at the Commission or by the State at any point in the proceedings that led to affirmance of the order—were inconsistent with what the Free Exercise Clause requires.”

However, Kennedy’s opinion was circumscribed.  In closing, Kennedy wrote that “[t]he outcome of cases like this in other circumstances must await further elaboration in the courts, 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 thus left the door open for further interpretation, and limited Masterpiece’s ruling to the facts of this case.  Kennedy focused on Phillips’ treatment before the commission and its apparent disrespect of Phillips’ sincerely held religious beliefs rather than the actual act of Phillips refusing to create a same-sex wedding cake.  It is a procedural decision, rather than a substantive one, and Kennedy indicated that in a similar case but with a different procedural posture, the result may be different.

It is precisely because of that procedural, technical decision, that Masterpiece is distinguishable from Lee v. Ashers Baking Company.  There, the Court of Appeals in Northern Ireland held that Ashers Bakery had discriminated against a customer by refusing to accept his order to make a customized cake with a logo of an LGBT organization and message in support of the legalization of gay marriage in Ireland.  In Lee, the customer specifically asked the bakery to decorate the top portion of the cake with the organization’s logo and the caption “Support Gay Marriage.”  Like in Masterpiece, the bakery rejected the design, saying it was a “Christian business” and it regarded the message of supporting gay marriage as sinful.

Like in Masterpiece, the Court of Appeals in Northern Ireland considered the case to not be about the sexual orientation of the customer but the message the customer wished to have displayed on his cake.  But that is where the similarities ended.  Again, in Masterpiece, the United States Supreme Court made its ruling based on the procedure by which the bakery owner was found to have violated a non-discrimination act.  It was that procedure that allowed the Court to find for Phillips and sidestep the substantive question of whether the cake’s message was compelled speech and whether the baker had actually discriminated.  In Lee, the court held that “the reason that the order was cancelled was that the appellants not provide a cake with a message supporting a right to marry for those of a particular sexual orientation.”

But on October 10, 2018, the Supreme Court of the United Kingdom reversed the holding of the Court of Appeals in Northern Ireland. The UK Supreme Court found that there was no discrimination on the grounds of sexual orientation. The Court explained that “this was a case of associative discrimination or nothing,” and that “the objection” to the case “was to the message and not to any particular person or persons.” In its opinion, the Court explained:

This suggests that the reason for refusing to supply the cake was that Mr. Lee [the complainant] was likely to associate with the gay community of which the McArthurs [the bakers] disapproved. But there was no evidence that the bakery had discriminated on that or any other prohibited ground in the past. The evidence was that they both employed and served gay people and treated them in a non-discriminatory way. Nor was there any finding that the reason for refusing to supply the cake was that Mr. Lee was thought to associate with gay people. The reason was their religious objection to gay marriage.

The UK Supreme Court also held that (somewhat similarly to the Masterpiece opinion) “there is here a much closer association between the political opinions of the man and the message that he wishes to promote, such that it could be argued that they are “indissociable” for the purpose of direct discrimination on the ground of political opinion.” In other words, because Mr. Lee was gay, there was a strong connection between Mr. Lee’s political opinions and the message he wished to have included on the cake. The Court referred to Article 9(1) of the European Convention on Human Rights, which reads:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

The UK Supreme Court seems to have adopted a compelled-speech theory, citing American jurisprudence, in determining that the Fair Employment and Treatment Order (“FETO”) does not require a provider of goods or services to express a message with which they disagree.

With the retirement of Justice Kennedy and the confirmation of Justice Kavanaugh, it is unclear how the United States Supreme Court would rule on a similar question of law with different operative facts.  However, Masterpiece does not dramatically reshape the freedom of expression landscape in the way that Lee may reshape the landscape in the United Kingdom.  Masterpiece simply stands for the proposition that when a sincerely held religious belief is raised as a defense to a non-discrimination act, the individual asserting the religious belief must be treated impartially and with respect. The future of cases on anti-gay discrimination or unlawful treatment of same-sex couples thus remains uncertain, and LGBT individuals may find themselves threatened with less equal access to certain services.