Masterpiece Cakeshop--Thoughts and Questions

Although the Court does not decide the Free Speech issue in this case, notice on page 2 it buries a bone in dictum:

The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.

This is a strong suggestion that custom made cake artistry is indeed artistic expression protected by the Free Speech Clause. Add in the strong compelled speech opinions by Thomas and Kennedy in NIFLA and you can predict how the next cake artist cakes will be decided under the "no compelled speech" doctrine.

Notice that the Court does hold that the Colorado Civil Rights Commission did violate Phillips' rights under the Free Exercise Clause of the First Amendment because the Commission violated the "obligation of religious neutrality." p. 2-3

How did the Commission violate its obligation of neutrality under the Free Exercise Clause?

Let's look at p. 13-17

1. Bigoted anti-religious statements. [See 2 Tim: 3:12  ("Indeed, all who desire to live a godly life in Christ Jesus will be persecuted.")]

2. Differential treatment of Phillips and other bakers who refused to bake cakes with religious messages they found offensive. p. 14-15

The Commission exempted bakers who were offended by anti-gay religious messages on cakes, but did not exempt bakers like Phillips who were offended by cakes celebrating SSM.

Here is a key quotation from p. 16:

A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness. Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive. The Colorado court’s attempt to account for the difference in treatment elevates one view of what is offensive over another and itself sends a signal of official disapproval of Phillips’ religious beliefs.

Again, although this comes in to explain why the Commission violated Phillips' rights under the Free Exercise Clause, the same reasoning applies to the Free Speech Clause and the Commission's viewpoint-based order compelling Phillips to create wedding cakes celebrating SSM.

Do you see this last point?

So, although the opinion is narrow in the sense that it focused on the particular facts of Phillips' case, much of the reasoning applies in other cases involving wedding vendors who object to taking part in SSM.