The Masterpiece Cakeshop Case Is Not an Invitation to Discriminate

Author: Sean B. Gentry

Yes, as the media widely reported, the U.S. Supreme Court sided with the baker in the case about a Colorado cake maker turning away business from a same-sex couple after he told them that he did not design custom cakes for gay couples.  However, rather than making a significant nation-wide ruling, the Court simply held that the Colorado Civil Rights Commission’s consideration of the baker’s case was “compromised” and it had treated him unfairly.  Thus, the ruling in no way opened the door to discrimination for businesses against any persons with protected, immutable characteristics.

In fact, Justice Kennedy wrote that it is “unexceptional” that Colorado law “can protect gay persons in acquiring products and services on the same terms and conditions that are offered to other members of the public.”  The problem was that the Commission did not apply the law “in a manner that is neutral toward religion.”

Colorado, like California and most other states, has a state anti-discrimination law for businesses that are open to the public.  Twenty-one of those states (again, including California) include sexual orientation among the protected classes of persons.

In California, the Unruh Civil Rights Act states that all persons are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.  California also recently added gender identity and gender expression to its list of protected characteristics in the Fair Employment and Housing Act.

This case serves as a reminder that businesses should refrain from treating persons differently based on immutable characteristics as well as fundamentally held beliefs, including religion.


One thought on “The Masterpiece Cakeshop Case Is Not an Invitation to Discriminate”

  1. By ruling in favor of the baker’s right to a hearing without animus toward religion but not affirming a right to deny pastries to same-sex couples, Justice Kennedy thinks he can have his cake and eat it too.

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