Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
goes to press.

															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 16–111

															_________________

															MASTERPIECE CAKESHOP, LTD., et al.,
PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION,
et al.

															on writ of certiorari to the court of appeals
of colorado

															[June 4, 2018]

															Justice Kennedy delivered the opinion of the
Court.

															In 2012 a same-sex couple visited Masterpiece
Cakeshop, a bakery in Colorado, to make inquiries about ordering a
cake for their wedding reception. The shop’s owner told the couple
that he would not create a cake for their wedding because of his
religious opposition to same-sex marriages—marriages the State of
Colorado itself did not recognize at that time. The couple filed a
charge with the Colorado Civil Rights Commission alleging
discrimination on the basis of sexual orientation in violation of
the Colorado Anti-Discrimination Act.

															The Commission determined that the shop’s
actions violated the Act and ruled in the couple’s favor. The
Colorado state courts affirmed the ruling and its enforcement
order, and this Court now must decide whether the Commission’s
order violated the Constitution.

															The case presents difficult questions as to the
proper reconciliation of at least two principles. The first is the
authority of a State and its governmental entities to protect the
rights and dignity of gay persons who are, or wish to be, married
but who face discrimination when they seek goods or services. The
second is the right of all persons to exercise fundamental freedoms
under the First Amendment, as applied to the States through the
Fourteenth Amendment.

															The freedoms asserted here are both the freedom
of speech and the free exercise of religion. 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.

															One of the difficulties in this case is that the
parties disagree as to the extent of the baker’s refusal to provide
service. If a baker refused to design a special cake with words or
images celebrating the marriage—for instance, a cake showing words
with religious meaning—that might be different from a refusal to
sell any cake at all. In defining whether a baker’s creation can be
protected, these details might make a difference.

															The same difficulties arise in determining
whether a baker has a valid free exercise claim. A baker’s refusal
to attend the wedding to ensure that the cake is cut the right way,
or a refusal to put certain religious words or decorations on the
cake, or even a refusal to sell a cake that has been baked for the
public generally but includes certain religious words or symbols on
it are just three examples of possibilities that seem all but
endless.

															Whatever the confluence of speech and free
exercise principles might be in some cases, the Colorado Civil
Rights Commission’s consideration of this case was inconsistent
with the State’s obligation of religious neutrality. The reason and
motive for the baker’s refusal were based on his sincere religious
beliefs and convictions. The Court’s precedents make clear that the
baker, in his capacity as the owner of a business serving the
public, might have his right to the free exercise of religion
limited by generally applicable laws. Still, the delicate question
of when the free exercise of his religion must yield to an
otherwise valid exercise of state power needed to be determined in
an adjudication in which religious hostility on the part of the
State itself would not be a factor in the balance the State sought
to reach. That requirement, however, was not met here. When the
Colorado Civil Rights Commission considered this case, it did not
do so with the religious neutrality that the Constitution
requires.

															Given all these considerations, it is proper to
hold that whatever the outcome of some future controversy involving
facts similar to these, the Commission’s actions here violated the
Free Exercise Clause; and its order must be set aside.

															I

															A

															Masterpiece Cakeshop, Ltd., is a bakery in
Lakewood, Colorado, a suburb of Denver. The shop offers a variety
of baked goods, ranging from everyday cookies and brownies to
elaborate custom-designed cakes for birthday parties, weddings, and
other events.

															Jack Phillips is an expert baker who has owned
and operated the shop for 24 years. Phillips is a devout Christian.
He has explained that his “main goal in life is to be obedient to”
Jesus Christ and Christ’s “teachings in all aspects of his life.”
App. 148. And he seeks to “honor God through his work at
Masterpiece Cakeshop.” Ibid. One of Phillips’ religious
beliefs is that “God’s intention for marriage from the beginning of
history is that it is and should be the union of one man and one
woman.” Id. , at 149. To Phillips, creating a wedding cake
for a same-sex wedding would be equivalent to participating in a
celebration that is contrary to his own most deeply held
beliefs.

															Phillips met Charlie Craig and Dave Mullins when
they entered his shop in the summer of 2012. Craig and Mullins were
planning to marry. At that time, Colorado did not recognize
same-sex marriages, so the couple planned to wed legally in
Massachusetts and afterwards to host a reception for their family
and friends in Denver. To prepare for their celebration, Craig and
Mullins visited the shop and told Phillips that they were
interested in ordering a cake for “our wedding.” Id. , at 152
(emphasis de- leted). They did not mention the design of the cake
they envisioned.

															Phillips informed the couple that he does not
“create” wedding cakes for same-sex weddings. Ibid. He
explained, “I’ll make your birthday cakes, shower cakes, sell you
cookies and brownies, I just don’t make cakes for same sex
weddings.” Ibid . The couple left the shop without further
discussion.

															The following day, Craig’s mother, who had
accompanied the couple to the cakeshop and been present for their
interaction with Phillips, telephoned to ask Phillips why he had
declined to serve her son. Phillips explained that he does not
create wedding cakes for same-sex weddings because of his religious
opposition to same-sex marriage, and also because Colorado (at that
time) did not recognize same-sex marriages. Id. , at 153. He
later explained his belief that “to create a wedding cake for an
event that celebrates something that directly goes against the
teachings of the Bible, would have been a personal endorsement and
participation in the ceremony and relationship that they were
entering into.” Ibid . (emphasis deleted).

															B

															For most of its history, Colorado has
prohibited discrimination in places of public accommodation. In
1885, less than a decade after Colorado achieved statehood, the
General Assembly passed “An Act to Protect All Citizens in Their
Civil Rights,” which guaranteed “full and equal enjoyment” of
certain public facilities to “all citizens,” “regardless of race,
color or previous condition of servitude.” 1885 Colo. Sess. Laws
pp. 132–133. A decade later, the General Assembly expanded the
requirement to apply to “all other places of public accommodation.”
1895 Colo. Sess. Laws ch. 61, p. 139.

															Today, the Colorado Anti-Discrimination Act
(CADA) carries forward the state’s tradition of prohibiting
discrimination in places of public accommodation. Amended in 2007
and 2008 to prohibit discrimination on the basis of sexual
orientation as well as other protected characteristics, CADA in
relevant part provides as follows:

															“It is a discriminatory practice and unlawful
for a person, directly or indirectly, to refuse, withhold from, or
deny to an individual or a group, because of disability, race,
creed, color, sex, sexual orientation, marital status, national
origin, or ancestry, the full and equal enjoyment of the goods,
services, facilities, privileges, advantages, or accommodations of
a place of public accommodation.” Colo. Rev. Stat. §24–34–601(2)(a)
(2017).

															The Act defines “public accommodation” broadly
to include any “place of business engaged in any sales to the
public and any place offering services . . . to the
public,” but excludes “a church, synagogue, mosque, or other place
that is principally used for religious purposes.”
§24–34–601(1).

															CADA establishes an administrative system for
the resolution of discrimination claims. Complaints of
discrimination in violation of CADA are addressed in the first
instance by the Colorado Civil Rights Division. The Division
investigates each claim; and if it finds probable cause that CADA
has been violated, it will refer the matter to the Colorado Civil
Rights Commission. The Commission, in turn, decides whether to
initiate a formal hearing before a state Administrative Law Judge
(ALJ), who will hear evidence and argument before issuing a written
decision. See §§24–34–306, 24–4–105(14). The decision of the ALJ
may be appealed to the full Commission, a seven-member appointed
body. The Commission holds a public hearing and deliberative
session before voting on the case. If the Commission determines
that the evidence proves a CADA violation, it may impose remedial
measures as provided by statute. See §24–34–306(9). Available
remedies include, among other things, orders to cease-and-desist a
discriminatory policy, to file regular compliance reports with the
Commission, and “to take affirmative action, including the posting
of notices setting forth the substantive rights of the public.”
§24–34–605. Colorado law does not permit the Commission to assess
money damages or fines. §§24–34–306(9), 24–34–605.

															C

															Craig and Mullins filed a discrimination
complaint against Masterpiece Cakeshop and Phillips in August 2012,
shortly after the couple’s visit to the shop. App. 31. The
complaint alleged that Craig and Mullins had been denied “full and
equal service” at the bakery because of their sexual orientation, id. , at 35, 48, and that it was Phillips’ “standard business
practice” not to provide cakes for same-sex weddings, id. ,
at 43.

															The Civil Rights Division opened an
investigation. The investigator found that “on multiple occasions,”
Phillips “turned away potential customers on the basis of their
sexual orientation, stating that he could not create a cake for a
same-sex wedding ceremony or reception” because his religious
beliefs prohibited it and because the potential customers “were
doing something illegal” at that time. Id. , at 76. The
investigation found that Phillips had declined to sell custom
wedding cakes to about six other same-sex couples on this basis. Id. , at 72. The investigator also recounted that, according
to affidavits submitted by Craig and Mullins, Phillips’ shop had
refused to sell cupcakes to a lesbian couple for their commitment
celebration because the shop “had a policy of not selling baked
goods to same-sex couples for this type of event.” Id. , at
73. Based on these findings, the Division found probable cause that
Phillips violated CADA and referred the case to the Civil Rights
Commission. Id. , at 69.

															The Commission found it proper to conduct a
formal hearing, and it sent the case to a State ALJ. Finding no
dispute as to material facts, the ALJ entertained cross-motions for
summary judgment and ruled in the couple’s favor. The ALJ first
rejected Phillips’ argument that declining to make or create a
wedding cake for Craig and Mullins did not violate Colorado law. It
was undisputed that the shop is subject to state public
accommodations laws. And the ALJ determined that Phillips’ actions
constituted prohibited discrimination on the basis of sex- ual
orientation, not simply opposition to same-sex marriage as Phillips
contended. App. to Pet. for Cert. 68a–72a.

															Phillips raised two constitutional claims before
the ALJ. He first asserted that applying CADA in a way that would
require him to create a cake for a same-sex wedding would violate
his First Amendment right to free speech by compelling him to
exercise his artistic talents to express a message with which he
disagreed. The ALJ rejected the contention that preparing a wedding
cake is a form of protected speech and did not agree that creating
Craig and Mullins’ cake would force Phillips to adhere to “an
ideological point of view.” Id. , at 75a. Applying CADA to
the facts at hand, in the ALJ’s view, did not interfere with
Phillips’ freedom of speech.

															Phillips also contended that requiring him to
create cakes for same-sex weddings would violate his right to the
free exercise of religion, also protected by the First Amendment.
Citing this Court’s precedent in Employment Div., Dept. of Human
Resources of Ore. v. Smith , 494 U. S. 872 (1990),
the ALJ determined that CADA is a “valid and neutral law of general
applicability” and therefore that applying it to Phillips in this
case did not violate the Free Exercise Clause. Id ., at 879;
App. to Pet. for Cert. 82a–83a. The ALJ thus ruled against Phillips
and the cakeshop and in favor of Craig and Mullins on both
constitutional claims.

															The Commission affirmed the ALJ’s decision in
full. Id. , at 57a. The Commission ordered Phillips to “cease
and desist from discriminating against . . . same-sex couples by
refusing to sell them wedding cakes or any product [they] would
sell to heterosexual couples.” Ibid. It also ordered
additional remedial measures, including “comprehensive staff
training on the Public Accommodations section” of CADA “and changes
to any and all company policies to comply with . . . this
Order.” Id. , at 58a. The Commission additionally required
Phillips to prepare “quarterly compliance reports” for a period of
two years documenting “the number of patrons denied service” and
why, along with “a statement describing the remedial actions
taken.” Ibid. Phillips appealed to the Colorado Court of
Appeals, which affirmed the Commission’s legal determinations and
remedial order. The court rejected the argument that the
“Commission’s order unconstitutionally compels” Phillips and the
shop “to convey a celebratory message about same sex marriage.” Craig v. Masterpiece Cakeshop, Inc. , 370 P. 3d
272, 283 (2015). The court also rejected the argument that the
Commission’s order violated the Free Exercise Clause. Relying on
this Court’s precedent in Smith , supra , at 879, the
court stated that the Free Exercise Clause “does not relieve an
individual of the obligation to comply with a valid and neutral law
of general applicability” on the ground that following the law
would interfere with religious practice or belief. 370 P. 3d,
at 289. The court concluded that requiring Phillips to comply with
the statute did not violate his free exercise rights. The Colorado
Supreme Court declined to hear the case.

															Phillips sought review here, and this Court
granted certiorari. 582 U. S. ___ (2017). He now renews his
claims under the Free Speech and Free Exercise Clauses of the First
Amendment.

															II

															A

															Our society has come to the recognition that
gay persons and gay couples cannot be treated as social outcasts or
as inferior in dignity and worth. For that reason the laws and the
Constitution can, and in some instances must, protect them in the
exercise of their civil rights. The exercise of their freedom on
terms equal to others must be given great weight and respect by the
courts. At the same time, the religious and philosophical
objections to gay marriage are protected views and in some
instances protected forms of expression. As this Court observed in Obergefell v. Hodges , 576 U. S. ___ (2015),
“[t]he First Amendment ensures that religious organizations and
persons are given proper protection as they seek to teach the
principles that are so fulfilling and so central to their lives and
faiths.” Id. , at ___ (slip op., at 27). Nevertheless, while
those religious and philosophical objections are protected, it is a
general rule that such 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. See Newman v. Piggy Park Enterprises, Inc. , 390 U. S. 400, 402, n.
5 (1968) ( per curiam ); see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc. , 515 U. S. 557, 572 (1995) (“Provisions like these
are well within the State’s usual power to enact when a legislature
has reason to believe that a given group is the target of
discrimination, and they do not, as a general matter, violate the
First or Fourteenth Amendments”).

															When it comes to weddings, it can be assumed
that a member of the clergy who objects to gay marriage on moral
and religious grounds could not be compelled to perform the
ceremony without denial of his or her right to the free exercise of
religion. This refusal would be well understood in our
constitutional order as an exercise of religion, an exercise that
gay persons could recognize and accept without serious diminishment
to their own dignity and worth. Yet if that exception were not
confined, then a long list of persons who provide goods and
services for marriages and weddings might refuse to do so for gay
persons, thus resulting in a community-wide stigma inconsistent
with the history and dynamics of civil rights laws that ensure
equal access to goods, services, and public accommodations.

															It is unexceptional 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. And there are no doubt innumerable goods and
services that no one could argue implicate the First Amendment.
Petitioners conceded, moreover, that if a baker refused to sell any
goods or any cakes for gay weddings, that would be a different
matter and the State would have a strong case under this Court’s
precedents that this would be a denial of goods and services that
went beyond any protected rights of a baker who offers goods and
services to the general public and is subject to a neutrally
applied and generally applicable public accommodations law. See Tr.
of Oral Arg. 4–7, 10.

															Phillips claims, however, that a narrower issue
is presented. He argues that he had to use his artistic skills to
make an expressive statement, a wedding endorsement in his own
voice and of his own creation. As Phillips would see the case, this
contention has a significant First Amendment speech component and
implicates his deep and sincere religious beliefs. In this context
the baker likely found it difficult to find a line where the
customers’ rights to goods and services became a demand for him to
exercise the right of his own personal expression for their
message, a message he could not express in a way consistent with
his religious beliefs.

															Phillips’ dilemma was particularly
understandable given the background of legal principles and
administration of the law in Colorado at that time. His decision
and his actions leading to the refusal of service all occurred in
the year 2012. At that point, Colorado did not recognize the
validity of gay marriages performed in its own State. See Colo.
Const., Art. II, §31 (2012); 370 P. 3d, at 277. At the
time of the events in question, this Court had not issued its
decisions either in United States v. Windsor , 570
U. S. 744 (2013), or Obergefell . Since the State itself
did not allow those marriages to be performed in Colorado, there is
some force to the argument that the baker was not unreasonable in
deeming it lawful to decline to take an action that he understood
to be an expression of support for their validity when that
expression was contrary to his sincerely held religious beliefs, at
least insofar as his refusal was limited to refusing to create and
express a message in support of gay marriage, even one planned to
take place in another State.

															At the time, state law also afforded
storekeepers some latitude to decline to create specific messages
the storekeeper considered offensive. Indeed, while enforcement
proceedings against Phillips were ongoing, the Colorado Civil
Rights Division itself endorsed this proposition in cases involving
other bakers’ creation of cakes, concluding on at least three
occasions that a baker acted lawfully in declining to create cakes
with decorations that demeaned gay persons or gay marriages. See Jack v. Gateaux, Ltd. , Charge No. P20140071X (Mar.
24, 2015); Jack v. Le Bakery Sensual, Inc. , Charge
No. P20140070X (Mar. 24, 2015); Jack v. Azucar
Bakery , Charge No. P20140069X (Mar. 24, 2015).

															There were, to be sure, responses to these
arguments that the State could make when it contended for a
different result in seeking the enforcement of its generally
applicable state regulations of businesses that serve the public.
And any decision in favor of the baker would have to be
sufficiently constrained, lest all purveyors of goods and services
who object to gay marriages for moral and religious reasons in
effect be allowed to put up signs saying “no goods or services will
be sold if they will be used for gay marriages,” something that
would impose a serious stigma on gay persons. But, nonetheless,
Phillips was entitled to the neutral and respectful consideration
of his claims in all the circumstances of the case.

															B

															The neutral and respectful consideration to
which Phillips was entitled was compromised here, however. The
Civil Rights Commission’s treatment of his case has some elements
of a clear and impermissible hostility toward the sincere religious
beliefs that motivated his objection.

															That hostility surfaced at the Commission’s
formal, public hearings, as shown by the record. On May 30, 2014,
the seven-member Commission convened publicly to consider Phillips’
case. At several points during its meeting, commissioners endorsed
the view that religious beliefs cannot legitimately be carried into
the public sphere or commercial domain, implying that religious
beliefs and persons are less than fully welcome in Colorado’s
business community. One commissioner suggested that Phillips can
believe “what he wants to believe,” but cannot act on his religious
beliefs “if he decides to do business in the state.” Tr. 23. A few
moments later, the commissioner restated the same position: “[I]f a
businessman wants to do business in the state and he’s got an issue
with the—the law’s impacting his personal belief system, he needs
to look at being able to compromise.” Id ., at 30. Standing
alone, these statements are susceptible of different
interpretations. On the one hand, they might mean simply that a
business cannot refuse to provide services based on sexual
orientation, regardless of the proprietor’s personal views. On the
other hand, they might be seen as inappropriate and dismissive
comments showing lack of due consideration for Phillips’ free
exercise rights and the dilemma he faced. In view of the comments
that followed, the latter seems the more likely.

															On July 25, 2014, the Commission met again. This
meeting, too, was conducted in public and on the record. On this
occasion another commissioner made specific reference to the
previous meeting’s discussion but said far more to disparage
Phillips’ beliefs. The commissioner stated:

															“I would also like to reiterate what we said in
the hearing or the last meeting. Freedom of religion and religion
has been used to justify all kinds of discrimination throughout
history, whether it be slavery, whether it be the holocaust,
whether it be—I mean, we—we can list hundreds of situations where
freedom of religion has been used to justify discrimination. And to
me it is one of the most despicable pieces of rhetoric that people
can use to—to use their religion to hurt others.” Tr. 11–12.

															To describe a man’s faith as “one of the most
despicable pieces of rhetoric that people can use” is to disparage
his religion in at least two distinct ways: by describing it as
despicable, and also by characterizing it as merely
rhetorical—something insubstantial and even insincere. The
commissioner even went so far as to compare Phillips’ invocation of
his sincerely held religious beliefs to defenses of slavery and the
Holocaust. This sentiment is inappropriate for a Commission charged
with the solemn responsibility of fair and neutral enforcement of
Colorado’s antidiscrimination law—a law that protects
discrimination on the basis of religion as well as sexual
orientation.

															The record shows no objection to these comments
from other commissioners. And the later state-court ruling
reviewing the Commission’s decision did not mention those comments,
much less express concern with their content. Nor were the comments
by the commissioners disavowed in the briefs filed in this Court.
For these reasons, the Court cannot avoid the conclusion that these
statements cast doubt on the fairness and impartiality of the
Commission’s adjudication of Phillips’ case. Members of the Court
have disagreed on the question whether statements made by lawmakers
may properly be taken into account in determining whether a law
intentionally discriminates on the basis of religion. See Church
of Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S.
520, 540–542 (1993); id., at 558 (Scalia, J., concurring in
part and concurring in judgment). In this case, however, the
remarks were made in a very different context—by an adjudicatory
body deciding a particular case.

															Another indication of hostility is the
difference in treatment between Phillips’ case and the cases of
other bakers who objected to a requested cake on the basis of
conscience and prevailed before the Commission.

															As noted above, on at least three other
occasions the Civil Rights Division considered the refusal of
bakers to create cakes with images that conveyed disapproval of
same-sex marriage, along with religious text. Each time, the
Division found that the baker acted lawfully in refusing service.
It made these determinations because, in the words of the Division,
the requested cake included “wording and images [the baker] deemed
derogatory,” Jack v. Gateaux, Ltd. , Charge No.
P20140071X, at 4; featured “language and images [the baker] deemed
hateful,” Jack v. Le Bakery Sensual, Inc. , Charge No.
P20140070X, at 4; or displayed a message the baker “deemed as
discriminatory, Jack v. Azucar Bakery , Charge No.
P20140069X, at 4.

															The treatment of the conscience-based objections
at issue in these three cases contrasts with the Commission’s
treatment of Phillips’ objection. The Commission ruled against
Phillips in part on the theory that any message the requested
wedding cake would carry would be attributed to the customer, not
to the baker. Yet the Division did not address this point in any of
the other cases with respect to the cakes depicting anti-gay
marriage symbolism. Additionally, the Division found no violation
of CADA in the other cases in part because each bakery was willing
to sell other products, including those depicting Christian themes,
to the prospective customers. But the Commission dismissed
Phillips’ willingness to sell “birthday cakes, shower cakes, [and]
cookies and brownies,” App. 152, to gay and lesbian customers as
irrelevant. The treatment of the other cases and Phillips’ case
could reasonably be interpreted as being inconsistent as to the
question of whether speech is involved, quite apart from whether
the cases should ultimately be distinguished. In short, the
Commission’s consideration of Phillips’ religious objection did not
accord with its treatment of these other objections.

															Before the Colorado Court of Appeals, Phillips
protested that this disparity in treatment reflected hostility on
the part of the Commission toward his beliefs. He argued that the
Commission had treated the other bakers’ conscience-based
objections as legitimate, but treated his as illegitimate—thus
sitting in judgment of his religious beliefs themselves. The Court
of Appeals addressed the disparity only in passing and relegated
its complete analysis of the issue to a footnote. There, the court
stated that “[t]his case is distinguishable from the Colorado Civil
Rights Division’s recent findings that [the other bakeries] in
Denver did not discriminate against a Christian patron on the basis
of his creed” when they refused to create the requested cakes. 370
P. 3d, at 282, n. 8. In those cases, the court continued,
there was no impermissible discrimination because “the Division
found that the bakeries . . . refuse[d] the patron’s
request . . . because of the offensive nature of the
requested message.” Ibid. 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,” West
Virginia Bd. of Ed. v. Barnette , 319 U. S. 624, 642
(1943), it is not, as the Court has repeatedly held, the role of
the State or its officials to prescribe what shall be offensive.
See Matal v. Tam , 582 U. S. ___, ___–___ (2017)
(opinion of Alito, J.) (slip op., at 22–23). 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. The court’s
footnote does not, therefore, answer the baker’s concern that the
State’s practice was to disfavor the religious basis of his
objection.

															C

															For the reasons just described, the
Commission’s treatment of Phillips’ case violated the State’s duty
under the First Amendment not to base laws or regulations on
hostility to a religion or religious viewpoint.

															In Church of Lukumi Babalu Aye, supra ,
the Court made clear that the government, if it is to respect the
Constitution’s guarantee of free exercise, cannot impose
regulations that are hostile to the religious beliefs of affected
citizens and cannot act in a manner that passes judgment upon or
presupposes the illegitimacy of religious beliefs and practices.
The Free Exercise Clause bars even “subtle departures from
neutrality” on matters of religion. Id. , at 534. Here, that
means the Commission was obliged under the Free Exercise Clause to
proceed in a manner neutral toward and tolerant of Phillips’
religious beliefs. The Constitution “commits government itself to
religious tolerance, and upon even slight suspicion that proposals
for state intervention stem from animosity to religion or distrust
of its practices, all officials must pause to remember their own
high duty to the Constitution and to the rights it secures.” Id ., at 547.

															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 decisionmaking body.” Id ., at 540. In
view of these factors the record here demonstrates that the
Commission’s consideration of Phillips’ case was neither tolerant
nor respectful of Phillips’ religious beliefs. The Commission gave
“every appearance,” id ., at 545, of adjudicating Phillips’
religious objection based on a negative normative “evaluation of
the particular justification” for his objection and the religious
grounds for it. Id ., at 537. It hardly requires restating
that government has no role in deciding or even suggesting whether
the religious ground for Phillips’ conscience-based objection is
legitimate or illegitimate. On these facts, the Court must draw the
inference that Phillips’ religious objection was not considered
with the neutrality that the Free Exercise Clause requires.

															While the issues here are difficult to resolve,
it must be concluded that the State’s interest could have been
weighed against Phillips’ sincere religious objections in a way
consistent with the requisite religious neutrality that must be
strictly observed. The 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. The Commission’s
disparate consideration of Phillips’ case compared to the cases of
the other bakers suggests the same. For these reasons, the order
must be set aside.

															III

															The Commission’s hostility was inconsistent
with the First Amendment’s guarantee that our laws be applied in a
manner that is neutral toward religion. Phillips was entitled to a
neutral decisionmaker who would give full and fair consideration to
his religious objection as he sought to assert it in all of the
circumstances in which this case was presented, considered, and
decided. In this case the adjudication concerned a context that may
well be different going forward in the respects noted above.
However later cases raising these or similar concerns are resolved
in the future, for these reasons the rulings of the Commission and
of the state court that enforced the Commission’s order must be
invalidated.

															The 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.

															The judgment of the Colorado Court of Appeals is
reversed.

															It is so ordered. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 16–111

															_________________

															MASTERPIECE CAKESHOP, LTD., et al.,
PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION,
et al.

															on writ of certiorari to the court of appeals
of colorado

															[June 4, 2018]

															Justice Kagan, with whom Justice Breyer joins,
concurring.

															“[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.” Ante , at 9. But in
upholding that principle, state actors cannot show hostility to
religious views; rather, they must give those views “neutral and
respectful consideration.” Ante , at 12. I join the Court’s
opinion in full because I believe the Colorado Civil Rights
Commission did not satisfy that obligation. I write separately to
elaborate on one of the bases for the Court’s holding.

															The Court partly relies on the “disparate
consideration of Phillips’ case compared to the cases of [three]
other bakers” who “objected to a requested cake on the basis of
conscience.” Ante , at 14, 18. In the latter cases, a
customer named William Jack sought “cakes with images that conveyed
disapproval of same-sex marriage, along with religious text”; the
bakers whom he approached refused to make them. Ante , at 15;
see post , at 3 (Ginsburg, J., dissenting) (further
describing the requested cakes). Those bakers prevailed before the
Colorado Civil Rights Division and Commission, while Phillips—who
objected for religious reasons to baking a wedding cake for a
same-sex couple—did not. The Court finds that the legal reasoning
of the state agencies differed in significant ways as between the
Jack cases and the Phillips case. See ante, at 15. And the
Court takes especial note of the suggestion made by the Colorado
Court of Appeals, in comparing those cases, that the state agencies
found the message Jack requested “offensive [in] nature.” Ante , at 16 (internal quotation marks omitted). As the Court
states, a “principled rationale for the difference in treatment”
cannot be “based on the government’s own assessment of
offensiveness.” Ibid. What makes the state agencies’ consideration yet
more disquieting is that a proper basis for distinguishing the
cases was available—in fact, was obvious. The Colorado
Anti-Discrimination Act (CADA) makes it unlawful for a place of
public accommodation to deny “the full and equal enjoyment” of
goods and services to individuals based on certain characteristics,
including sexual orientation and creed. Colo. Rev. Stat.
§24–34–601(2)(a) (2017). The three bakers in the Jack cases did not
violate that law. Jack requested them to make a cake (one
denigrating gay people and same-sex marriage) that they would not
have made for any customer. In refusing that request, the bakers
did not single out Jack because of his religion, but instead
treated him in the same way they would have treated anyone
else—just as CADA requires. By contrast, the same-sex couple in
this case requested a wedding cake that Phillips would have made
for an opposite-sex couple. In refusing that request, Phillips
contravened CADA’s demand that customers receive “the full and
equal enjoyment” of public accommodations irrespective of their
sexual orientation. Ibid. The different outcomes in the Jack
cases and the Phillips case could thus have been justified by a
plain reading and neutral application of Colorado law—untainted by
any bias against a religious belief.[ 1 ]*

															I read the Court’s opinion as fully consistent
with that view. The Court limits its analysis to the reasoning of the state agencies (and Court of
Appeals)—“quite apart from whether the [Phillips and Jack] cases
should ultimately be distinguished.” Ante , at 15. And the
Court itself recognizes the principle that would properly account
for a difference in result between those cases. Colorado
law, the Court says, “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.” Ante , at 10.
For that reason, Colorado can treat a baker who discriminates based
on sexual orientation differently from a baker who does not
discriminate on that or any other prohibited ground. But only, as
the Court rightly says, if the State’s decisions are not infected
by religious hostility or bias. I accordingly concur. Notes 1 * Justice Gorsuch
disagrees. In his view, the Jack cases and the Phillips case must
be treated the same because the bakers in all those cases “would
not sell the requested cakes to anyone.” Post , at 4. That
description perfectly fits the Jack cases—and explains why the
bakers there did not engage in unlawful discrimination. But it is a
surprising characterization of the Phillips case, given that
Phillips routinely sells wedding cakes to opposite-sex couples.
Justice Gorsuch can make the claim only because he does not think a
“wedding cake” is the relevant product. As Justice Gorsuch sees it,
the product that Phillips refused to sell here—and would refuse to
sell to anyone—was a “cake celebrating same-sex marriage.” Ibid. ; see post , at 3, 6, 8–9. But that is wrong. The
cake requested was not a special “cake celebrating same-sex
marriage.” It was simply a wedding cake—one that (like other
standard wedding cakes) is suitable for use at same-sex and
opposite-sex weddings alike. See ante , at 4 (majority
opinion) (recounting that Phillips did not so much as discuss the
cake’s design before he refused to make it). And contrary to
Justice Gorsuch’s view, a wedding cake does not become something
different whenever a vendor like Phillips invests its sale to
particular customers with “religious significance.” Post , at
11. As this Court has long held, and reaffirms today, a vendor
cannot escape a public accommodations law because his religion
disapproves selling a product to a group of customers, whether
defined by sexual orientation, race, sex, or other protected trait.
See Newman v. Piggie Park Enterprises, Inc. , 390
U. S. 400, 402, n. 5 (1968) ( per curiam ) (holding
that a barbeque vendor must serve black customers even if he
perceives such service as vindicating racial equality, in violation
of his religious beliefs); ante , at 9. A vendor can choose
the products he sells, but not the customers he serves—no matter
the reason. Phillips sells wedding cakes. As to that product, he
unlawfully discriminates: He sells it to opposite-sex but not to
same-sex couples. And on that basis—which has nothing to do with
Phillips’ religious beliefs—Colorado could have distinguished
Phillips from the bakers in the Jack cases, who did not engage in
any prohibited discrimination. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 16–111

															_________________

															MASTERPIECE CAKESHOP, LTD., et al.,
PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION,
et al.

															on writ of certiorari to the court of appeals
of colorado

															[June 4, 2018]

															Justice Gorsuch, with whom Justice Alito
joins, concurring.

															In Employment Div., Dept. of Human Resources
of Ore. v. Smith , this Court held that a neutral and
generally applicable law will usually survive a constitutional free
exercise challenge. 494 U. S. 872, 878–879 (1990). Smith remains controversial in many quarters. Compare
McConnell, The Origins and Historical Understanding of Free
Exercise of Religion, 103 Harv. L. Rev. 1409 (1990), with
Hamburger, A Constitutional Right of Religious Exemption: An
Historical Perspective, 60 Geo. Wash. L. Rev. 915 (1992). But we
know this with certainty: when the government fails to act
neutrally toward the free exercise of religion, it tends to run
into trouble. Then the government can prevail only if it satisfies
strict scrutiny, showing that its restrictions on religion both
serve a compelling interest and are narrowly tailored. Church of
Lukumi Babalu Aye, Inc. v. Hialeah , 508 U. S. 520,
546 (1993).

															Today’s decision respects these principles. As
the Court explains, the Colorado Civil Rights Commission failed to
act neutrally toward Jack Phillips’s religious faith. Maybe most
notably, the Commission allowed three other bakers to refuse a
customer’s request that would have required them to violate their
secular commitments. Yet it denied the same accommodation to Mr.
Phillips when he refused a customer’s request that would have
required him to violate his religious beliefs. Ante, at
14–16. As the Court also explains, the only reason the Commission
seemed to supply for its discrimination was that it found Mr.
Phillips’s religious beliefs “offensive.” Ibid. That kind of
judgmental dismissal of a sincerely held religious belief is, of
course, antithetical to the First Amendment and cannot begin to
satisfy strict scrutiny. The Constitution protects not just popular
religious exercises from the condemnation of civil authorities. It
protects them all. Because the Court documents each of these points
carefully and thoroughly, I am pleased to join its opinion in
full.

															The only wrinkle is this. In the face of so much
evidence suggesting hostility toward Mr. Phillips’s sincerely held
religious beliefs, two of our colleagues have written separately to
suggest that the Commission acted neutrally toward his faith when
it treated him differently from the other bakers—or that it could
have easily done so consistent with the First Amendment. See post, at 4–5, and n. 4 (Ginsburg, J., dissenting); ante, at 2–3, and n. (Kagan, J., concurring). But,
respectfully, I do not see how we might rescue the Commission from
its error.

															A full view of the facts helps point the way to
the problem. Start with William Jack’s case. He approached three
bakers and asked them to prepare cakes with messages disapproving
same-sex marriage on religious grounds. App. 233, 243, 252. All
three bakers refused Mr. Jack’s request, stating that they found
his request offensive to their secular convictions. Id. , at
231, 241, 250. Mr. Jack responded by filing complaints with the
Colorado Civil Rights Division. Id. , at 230, 240, 249. He
pointed to Colorado’s Anti-Discrimination Act, which prohibits
discrimination against customers in public accommodations because
of religious creed, sexual orientation, or certain other traits.
See ibid. ; Colo. Rev. Stat. §24–34–601(2)(a) (2017). Mr.
Jack argued that the cakes he sought reflected his religious
beliefs and that the bakers could not refuse to make them just
because they happened to disagree with his beliefs. App. 231, 241,
250. But the Division declined to find a violation, reasoning that
the bakers didn’t deny Mr. Jack service because of his religious
faith but because the cakes he sought were offensive to their own
moral convictions. Id. , at 237, 247, 255–256. As proof, the
Division pointed to the fact that the bakers said they treated Mr.
Jack as they would have anyone who requested a cake with similar
messages, regardless of their religion. Id. , at 230–231,
240, 249 . The Division pointed, as well, to the fact that
the bakers said they were happy to provide religious persons with
other cakes expressing other ideas. Id. , at 237, 247, 257.
Mr. Jack appealed to the Colorado Civil Rights Commission, but the
Commission summarily denied relief. App. to Pet. for Cert.
326a–331a.

															Next, take the undisputed facts of Mr.
Phillips’s case. Charlie Craig and Dave Mullins approached Mr.
Phillips about creating a cake to celebrate their wedding. App.
168. Mr. Phillips explained that he could not prepare a cake
celebrating a same-sex wedding consistent with his religious faith. Id., at 168–169 . But Mr. Phillips offered to make
other baked goods for the couple, including cakes celebrating other
occasions. Ibid. Later, Mr. Phillips testified without
contradiction that he would have refused to create a cake
celebrating a same-sex marriage for any customer, regardless of his
or her sexual orientation. Id., at 166–167 (“I will not
design and create wedding cakes for a same-sex wedding regardless
of the sexual orientation of the customer”). And the record reveals
that Mr. Phillips apparently refused just such a request from Mr.
Craig’s mother. Id., at 38–40, 169. (Any suggestion that Mr.
Phillips was willing to make a cake celebrating a same-sex marriage
for a heterosexual customer or was not willing to sell other
products to a homosexual customer, then, would simply mistake the
undisputed factual record. See post, at 4, n. 2
(Ginsburg, J., dissenting); ante, at 2–3, and n. (Kagan, J.,
concurring)). Nonetheless, the Commission held that Mr. Phillips’s
conduct violated the Colorado public accommodations law. App. to
Pet. for Cert. 56a–58a.

															The facts show that the two cases share all
legally sa- lient features. In both cases, the effect on the
customer was the same: bakers refused service to persons who bore a
statutorily protected trait (religious faith or sexual
orientation). But in both cases the bakers refused service
intending only to honor a personal conviction. To be sure, the
bakers knew their conduct promised the effect of leaving a
customer in a protected class unserved. But there’s no indication
the bakers actually intended to refuse service because
of a customer’s protected characteristic. We know this because
all of the bakers explained without contradiction that they would
not sell the requested cakes to anyone, while they would sell other
cakes to members of the protected class (as well as to anyone
else). So, for example, the bakers in the first case would have
refused to sell a cake denigrating same-sex marriage to an atheist
customer, just as the baker in the second case would have refused
to sell a cake celebrating same-sex marriage to a heterosexual
customer. And the bakers in the first case were generally happy to
sell to persons of faith, just as the baker in the second case was
generally happy to sell to gay persons. In both cases, it was the
kind of cake, not the kind of customer, that mattered to the
bakers.

															The distinction between intended and knowingly
accepted effects is familiar in life and law. Often the purposeful
pursuit of worthy commitments requires us to accept unwanted but
entirely foreseeable side effects: so, for example, choosing to
spend time with family means the foreseeable loss of time for
charitable work, just as opting for more time in the office means
knowingly forgoing time at home with loved ones. The law, too,
sometimes distinguishes between intended and foreseeable effects.
See, e.g., ALI, Model Penal Code §§1.13, 2.02(2)(a)(i)
(1985); 1 W. LaFave, Substantive Criminal Law §5.2(b), pp. 460–463
(3d ed. 2018). Other times, of course, the law proceeds
differently, either conflating intent and knowledge or presuming
intent as a matter of law from a showing of knowledge. See, e.g., Restatement (Second) of Torts §8A (1965); Radio
Officers v. NLRB , 347 U. S. 17, 45 (1954).

															The problem here is that the Commission failed
to act neutrally by applying a consistent legal rule. In Mr. Jack’s
case, the Commission chose to distinguish carefully between
intended and knowingly accepted effects. Even though the bakers
knowingly denied service to someone in a protected class, the
Commission found no violation because the bakers only intended to
distance themselves from “the offensive nature of the requested
message.” Craig v. Masterpiece Cakeshop, Inc. , 370
P. 3d 272, 282, n. 8 (Colo. App. 2015); App. 237, 247,
256; App. to Pet. for Cert. 326a–331a; see also Brief for
Respondent Colorado Civil Rights Commission 52 (“Businesses are
entitled to reject orders for any number of reasons, including
because they deem a particular product requested by a customer to
be ‘offensive’ ”). Yet, in Mr. Phillips’s case, the Commission
dismissed this very same argument as resting on a “distinction
without a difference.” App. to Pet. for Cert. 69a. It concluded
instead that an “intent to disfavor” a protected class of persons
should be “readily . . . presumed” from the knowing
failure to serve someone who belongs to that class. Id., at
70a. In its judgment, Mr. Phillips’s intentions were “inextricably
tied to the sexual orientation of the parties involved” and
essentially “irrational.” Ibid. Nothing in the Commission’s opinions suggests
any neutral principle to reconcile these holdings. If Mr.
Phillips’s objection is “inextricably tied” to a protected class,
then the bakers’ objection in Mr. Jack’s case must be “inextricably
tied” to one as well. For just as cakes celebrating same-sex
weddings are (usually) requested by persons of a particular sexual
orientation, so too are cakes expressing religious opposition to
same-sex weddings (usually) requested by persons of particular
religious faiths. In both cases the bakers’ objection would
(usually) result in turning down customers who bear a protected
characteristic. In the end, the Commission’s decisions simply
reduce to this: it presumed that Mr. Phillip harbored an
intent to discriminate against a protected class in light of the
foreseeable effects of his conduct, but it declined to presume the
same intent in Mr. Jack’s case even though the effects of the
bakers’ conduct were just as foreseeable. Underscoring the double
standard, a state appellate court said that “no such showing” of
actual “animus”—or intent to discriminate against persons in a
protected class—was even required in Mr. Phillips’s case. 370
P. 3d, at 282.

															The Commission cannot have it both ways. The
Commission cannot slide up and down the mens rea scale,
picking a mental state standard to suit its tastes depending on its
sympathies. Either actual proof of intent to discriminate on the
basis of membership in a protected class is required (as the
Commission held in Mr. Jack’s case), or it is sufficient to
“presume” such intent from the knowing failure to serve someone in
a protected class (as the Commission held in Mr. Phillips’s case).
Perhaps the Commission could have chosen either course as an
initial matter. But the one thing it can’t do is apply a more
generous legal test to secular objections than religious ones. See Church of Lukumi Babalu Aye, 508 U. S., at 543–544.
That is anything but the neutral treatment of religion.

															The real explanation for the Commission’s
discrimination soon comes clear, too—and it does anything but help
its cause. This isn’t a case where the Commission self-consciously
announced a change in its legal rule in all public accommodation
cases. Nor is this a case where the Commission offered some
persuasive reason for its discrimination that might survive strict
scrutiny. Instead, as the Court explains, it appears the Commission
wished to condemn Mr. Phillips for expressing just the kind of
“irrational” or “offensive . . . message” that the bakers
in the first case refused to endorse. Ante, at 16. Many may
agree with the Commission and consider Mr. Phillips’s religious
beliefs irrational or offensive. Some may believe he misinterprets
the teachings of his faith. And, to be sure, this Court has held
same-sex marriage a matter of constitutional right and various
States have enacted laws that preclude discrimination on the basis
of sexual orientation. But it is also true that no bureaucratic
judgment condemning a sincerely held religious belief as
“irrational” or “offensive” will ever survive strict scrutiny under
the First Amendment. In this country, the place of secular
officials isn’t to sit in judgment of religious beliefs, but only
to protect their free exercise. Just as it is the “proudest boast
of our free speech jurisprudence” that we protect speech that we
hate, it must be the proudest boast of our free exercise
jurisprudence that we protect religious beliefs that we find
offensive. See Matal v. Tam , 582 U. S. ___, ___
(2017) (plurality opinion) (slip op., at 25) (citing United
States v. Schwimmer , 279 U. S. 644, 655 (1929)
(Holmes, J., dissenting)). Popular religious views are easy enough
to defend. It is in protecting unpopular religious beliefs that we
prove this country’s commitment to serving as a refuge for
religious freedom. See Church of Lukumi Babalu Aye, supra ,
at 547; Thomas v. Review Bd. of Indiana Employment
Security Div. , 450 U. S. 707, 715–716 (1981); Wisconsin v. Yoder , 406 U. S. 205, 223–224
(1972); Cantwell v. Connecticut , 310 U. S. 296,
308–310 (1940).

															Nor can any amount of after-the-fact maneuvering
by our colleagues save the Commission. It is no answer, for
example, to observe that Mr. Jack requested a cake with text on it
while Mr. Craig and Mr. Mullins sought a cake celebrating their
wedding without discussing its decoration, and then suggest this
distinction makes all the difference. See post, at 4–5, and
n. 4 (Ginsburg, J., dissenting). It is no answer either simply
to slide up a level of generality to redescribe Mr. Phillips’s case
as involving only a wedding cake like any other, so the fact that
Mr. Phillips would make one for some means he must make them for
all. See ante, at 2–3, and n. (Kagan, J., concurring). These
arguments, too, fail to afford Mr. Phillips’s faith neutral
respect.

															Take the first suggestion first. To suggest that
cakes with words convey a message but cakes without words do
not—all in order to excuse the bakers in Mr. Jack’s case while
penalizing Mr. Phillips—is irrational. Not even the Commission or
court of appeals purported to rely on that distinction. Imagine Mr.
Jack asked only for a cake with a symbolic expression against
same-sex marriage rather than a cake bearing words conveying the
same idea. Surely the Commission would have approved the bakers’
intentional wish to avoid participating in that message too. Nor
can anyone reasonably doubt that a wedding cake without words
conveys a message. Words or not and whatever the exact design, it
celebrates a wedding, and if the wedding cake is made for a
same-sex couple it celebrates a same-sex wedding. See 370
P. 3d, at 276 (stating that Mr. Craig and Mr. Mullins
“requested that Phillips design and create a cake to
celebrate their same-sex wedding ”) (emphasis added). Like “an
emblem or flag,” a cake for a same-sex wedding is a symbol that
serves as “a short cut from mind to mind,” signifying approval of a
specific “system, idea, [or] institution.” West Virginia Bd. of
Ed. v. Barnette , 319 U. S. 624, 632 (1943). It is
precisely that approval that Mr. Phillips intended to withhold in
keeping with his religious faith. The Commission denied Mr.
Phillips that choice, even as it afforded the bakers in Mr. Jack’s
case the choice to refuse to advance a message they deemed
offensive to their secular commitments. That is not neutral.

															Nor would it be proper for this or any court to
suggest that a person must be forced to write words rather than
create a symbol before his religious faith is implicated. Civil
authorities, whether “high or petty,” bear no license to declare
what is or should be “orthodox” when it comes to religious beliefs, id., at 642, or whether an adherent has “correctly
perceived” the commands of his religion, Thomas, supra, at
716. Instead, it is our job to look beyond the formality of written
words and afford legal protection to any sincere act of faith. See
generally Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, Inc. , 515 U. S. 557, 569 (1995)
(“[T]he Constitution looks beyond written or spoken words as
mediums of ex- pression,” which are “not a condition of
constitutional protection”).

															The second suggestion fares no better.
Suggesting that this case is only about “wedding cakes”—and not a
wedding cake celebrating a same-sex wedding—actually points up the
problem. At its most general level, the cake at issue in Mr.
Phillips’s case was just a mixture of flour and eggs; at its most
specific level, it was a cake celebrating the same-sex wedding of
Mr. Craig and Mr. Mullins. We are told here, however, to apply a
sort of Goldilocks rule: describing the cake by its ingredients is too general ; understanding it as celebrating a same-sex
wedding is too specific ; but regarding it as a generic
wedding cake is just right . The problem is, the Commission
didn’t play with the level of generality in Mr. Jack’s case in this
way. It didn’t declare, for example, that because the cakes Mr.
Jack requested were just cakes about weddings generally, and all
such cakes were the same, the bakers had to produce them. Instead,
the Commission accepted the bakers’ view that the specific cakes
Mr. Jack requested conveyed a message offensive to their
convictions and allowed them to refuse service. Having done that
there, it must do the same here.

															Any other conclusion would invite civil
authorities to gerrymander their inquiries based on the parties
they prefer. Why calibrate the level of generality in Mr.
Phillips’s case at “wedding cakes” exactly—and not at, say, “cakes”
more generally or “cakes that convey a message regarding same-sex
marriage” more specifically? If “cakes” were the relevant level of
generality, the Commission would have to order the bakers to make
Mr. Jack’s requested cakes just as it ordered Mr. Phillips to make
the requested cake in his case. Conversely, if “cakes that convey a
message regarding same-sex marriage” were the relevant level of
generality, the Commission would have to respect Mr. Phillips’s
refusal to make the requested cake just as it respected the bakers’
refusal to make the cakes Mr. Jack requested. In short, when the
same level of generality is applied to both cases, it is no
surprise that the bakers have to be treated the same. Only by
adjusting the dials just right —fine-tuning the level of
generality up or down for each case based solely on the identity of
the parties and the substance of their views—can you engineer the
Commission’s outcome, handing a win to Mr. Jack’s bakers but
delivering a loss to Mr. Phillips. Such results-driven reasoning is
improper. Neither the Commission nor this Court may apply a more
specific level of generality in Mr. Jack’s case (a cake that
conveys a message regarding same-sex marriage) while applying a
higher level of generality in Mr. Phillips’s case (a cake that
conveys no message regarding same-sex marriage). Of course, under Smith a vendor cannot escape a public accommodations law
just because his religion frowns on it. But for any law to comply
with the First Amendment and Smith , it must be applied in a
manner that treats religion with neutral respect. That means the
government must apply the same level of generality across
cases—and that did not happen here.

															There is another problem with sliding up the
generality scale: it risks denying constitutional protection to
religious beliefs that draw distinctions more specific than the
government’s preferred level of description. To some, all wedding
cakes may appear indistinguishable. But to Mr. Phillips that
is not the case—his faith teaches him otherwise. And his religious
beliefs are entitled to no less respectful treatment than the
bakers’ secular beliefs in Mr. Jack’s case. This Court has
explained these same points “[r]epeatedly and in many different
contexts” over many years. Smith , 494 U. S. at 887. For
example, in Thomas a faithful Jehovah’s Witness and steel
mill worker agreed to help manufacture sheet steel he knew might
find its way into armaments, but he was unwilling to work on a
fabrication line producing tank turrets. 450 U. S., at 711. Of
course, the line Mr. Thomas drew wasn’t the same many others would
draw and it wasn’t even the same line many other members of the
same faith would draw. Even so, the Court didn’t try to suggest
that making steel is just making steel. Or that to offend his
religion the steel needed to be of a particular kind or shape.
Instead, it recognized that Mr. Thomas alone was entitled to define
the nature of his religious commitments—and that those commitments,
as defined by the faithful adherent, not a bureaucrat or judge, are
entitled to protection under the First Amendment. Id., at
714–716; see also United States v. Lee , 455
U. S. 252, 254–255 (1982); Smith , supra, at 887
(collecting authorities). It is no more appropriate for the United
States Supreme Court to tell Mr. Phillips that a wedding cake is
just like any other—without regard to the religious significance
his faith may attach to it—than it would be for the Court to
suggest that for all persons sacramental bread is just bread
or a kippah is just a cap.

															Only one way forward now remains. Having failed
to afford Mr. Phillips’s religious objections neutral consideration
and without any compelling reason for its failure, the Commission
must afford him the same result it afforded the bakers in Mr.
Jack’s case. The Court recognizes this by reversing the judgment
below and holding that the Commission’s order “must be set aside.” Ante, at 18. Maybe in some future rulemaking or case the
Commission could adopt a new “knowing” standard for all refusals of
service and offer neutral reasons for doing so. But, as the Court
observes, “[h]owever later cases raising these or similar concerns
are resolved in the future, . . . the rulings of the
Commission and of the state court that enforced the Commission’s
order” in this case “must be invalidated.” Ibid . Mr.
Phillips has conclusively proven a First Amendment violation and,
after almost six years facing unlawful civil charges, he is
entitled to judgment. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 16–111

															_________________

															MASTERPIECE CAKESHOP, LTD., et al.,
PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION,
et al.

															on writ of certiorari to the court of appeals
of colorado

															[June 4, 2018]

															Justice Thomas, with whom Justice Gorsuch
joins, concurring in part and concurring in the judgment.

															I agree that the Colorado Civil Rights
Commission (Commission) violated Jack Phillips’ right to freely
exercise his religion. As Justice Gorsuch explains, the Commission
treated Phillips’ case differently from a similar case involving
three other bakers, for reasons that can only be explained by
hostility toward Phillips’ religion. See ante, at 2–7
(concurring opinion). The Court agrees that the Commission treated
Phillips differently, and it points out that some of the
Commissioners made comments disparaging Phillips’ religion. See ante, at 12–16. Although the Commissioners’ comments are
certainly disturbing, the discriminatory application of Colorado’s
public-accommodations law is enough on its own to violate Phillips’
rights. To the extent the Court agrees, I join its opinion.

															While Phillips rightly prevails on his
free-exercise claim, I write separately to address his free-speech
claim. The Court does not address this claim because it has some
uncertainties about the record. See ante, at 2.
Specifically, the parties dispute whether Phillips refused to
create a custom wedding cake for the individual respondents,
or whether he refused to sell them any wedding cake
(including a premade one). But the Colorado Court of Appeals
resolved this factual dispute in Phillips’ favor. The court
described his conduct as a refusal to “design and create a cake to
celebrate [a] same-sex wedding.” Craig v. Masterpiece
Cakeshop, Inc. , 370 P.3d 272, 276 (2015); see also id., at 286 (“designing and selling a wedding cake”); id., at 283
(“refusing to create a wedding cake”). And it noted that the
Commission’s order required Phillips to sell “ ‘ any product [he] would sell to heterosexual couples,’ ” including
custom wedding cakes. Id., at 286 (emphasis added).

															Even after describing his conduct this way, the
Court of Appeals concluded that Phillips’ conduct was not
expressive and was not protected speech. It reasoned that an
outside observer would think that Phillips was merely complying
with Colorado’s public-accommodations law, not expressing a
message, and that Phillips could post a disclaimer to that effect.
This reasoning flouts bedrock principles of our free-speech
jurisprudence and would justify virtually any law that compels
individuals to speak. It should not pass without comment.

															I

															The First Amendment, applicable to the States
through the Fourteenth Amendment, prohibits state laws that abridge
the “freedom of speech.” When interpreting this command, this Court
has distinguished between regulations of speech and regulations of
conduct. The latter generally do not abridge the freedom of speech,
even if they impose “incidental burdens” on expression. Sorrell v. IMS Health Inc. , 564 U. S. 552, 567
(2011). As the Court explains today, public-accommodations laws
usually regulate conduct. Ante, at 9–10 (citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston, Inc. , 515 U. S. 557, 572 (1995)). “[A]s a
general matter,” public-accommodations laws do not “target speech”
but instead prohibit “the act of discriminating against
individuals in the provision of publicly available goods,
privileges, and services.” Id., at 572 (emphasis added).

															Although public-accommodations laws generally
regulate conduct, particular applications of them can burden
protected speech. When a public-accommodations law “ha[s] the
effect of declaring . . . speech itself to be the public
accommodation,” the First Amendment applies with full force. Id. , at 573; accord, Boy Scouts of America v. Dale , 530 U. S. 640, 657–659 (2000). In Hurley ,
for example, a Massachusetts public-accommodations law prohib- ited
“ ‘any distinction, discrimination or restriction on ac- count
of . . . sexual orientation . . . relative to
the admission of any person to, or treatment in any place of public
accommodation.’ ” 515 U. S. , at 561 (quoting Mass.
Gen. Laws §272:98 (1992); ellipsis in original). When this law
required the sponsor of a St. Patrick’s Day parade to include a
parade unit of gay, lesbian, and bisexual Irish-Americans, the
Court unanimously held that the law violated the sponsor’s right to
free speech. Parades are “a form of expression,” this Court
explained, and the application of the public-accommodations law
“alter[ed] the expressive content” of the parade by forcing the
sponsor to add a new unit. 515 U. S., at 568, 572–573. The
addition of that unit compelled the organizer to “bear witness to
the fact that some Irish are gay, lesbian, or bisexual”; “suggest
. . . that people of their sexual orientation have as
much claim to unqualified social acceptance as heterosexuals”; and
imply that their participation “merits celebration.” Id., at
574. While this Court acknowledged that the unit’s exclusion might
have been “misguided, or even hurtful,” ibid. , it rejected
the notion that governments can mandate “thoughts and statements
acceptable to some groups or, indeed, all people” as the
“antithesis” of free speech, id., at 579; accord, Dale , supra, at 660–661.

															The parade in Hurley was an example of
what this Court has termed “expressive conduct.” See 515
U. S., at 568–569. This Court has long held that “the
Constitution looks beyond written or spoken words as mediums of
expression,” id. , at 569, and that “[s]ymbolism is a
primitive but effective way of communicating ideas,” West
Virginia Bd. of Ed. v. Barnette , 319 U. S. 624, 632
(1943). Thus, a person’s “conduct may be ‘sufficiently imbued with
elements of communication to fall within the scope of the First and
Fourteenth Amendments.’ ” Texas v. Johnson , 491
U. S. 397, 404 (1989). Applying this principle, the Court has
recognized a wide array of conduct that can qualify as expressive,
including nude dancing, burning the American flag, flying an
upside-down American flag with a taped-on peace sign, wearing a
military uniform, wearing a black armband, conducting a silent
sit-in, refusing to salute the American flag, and flying a plain
red flag.[ 1 ]

															Of course, conduct does not qualify as protected
speech simply because “the person engaging in [it] intends thereby
to express an idea.” United States v. O’Brien , 391
U. S. 367, 376 (1968). To determine whether conduct is
sufficiently expressive, the Court asks whether it was “intended to
be communicative” and, “in context, would reasona- bly be
understood by the viewer to be communicative.” Clark v. Community for Creative Non-Violence , 468 U. S. 288, 294
(1984). But a “ ‘particularized message’ ” is not
required, or else the freedom of speech “would never reach the
unquestionably shielded painting of Jackson Pollock, music of
Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.” Hurley , 515 U. S., at 569.

															Once a court concludes that conduct is
expressive, the Constitution limits the government’s authority to
restrict or compel it. “[O]ne important manifestation of the
principle of free speech is that one who chooses to speak may also
decide ‘what not to say’ ” and “tailor” the content of his
message as he sees fit. Id., at 573 (quoting Pacific Gas
& Elec. Co. v. Public Util. Comm’n of Cal. , 475
U. S. 1, 16 (1986) (plurality opinion)). This rule “applies
not only to expressions of value, opinion, or endorsement, but
equally to statements of fact the speaker would rather avoid.” Hurley , supra , at 573. And it “makes no difference”
whether the government is regulating the “creati[on],
distributi[on], or consum[ption]” of the speech. Brown v. Entertainment Merchants Assn. , 564 U. S. 786, 792,
n. 1 (2011).

															II

															A

															The conduct that the Colorado Court of Appeals
ascribed to Phillips—creating and designing custom wedding cakes—is
expressive. Phillips considers himself an artist. The logo for
Masterpiece Cakeshop is an artist’s paint palate with a paintbrush
and baker’s whisk. Behind the counter Phillips has a picture that
depicts him as an artist painting on a canvas. Phillips takes
exceptional care with each cake that he creates—sketching the
design out on paper, choosing the color scheme, creating the
frosting and decorations, baking and sculpting the cake, decorating
it, and delivering it to the wedding. Examples of his creations can
be seen on Masterpiece’s website. See
http://masterpiececakes.com/wedding-cakes (as last visited June 1,
2018).

															Phillips is an active participant in the wedding
celebration. He sits down with each couple for a consultation
before he creates their custom wedding cake. He discusses their
preferences, their personalities, and the details of their wedding
to ensure that each cake reflects the couple who ordered it. In
addition to creating and delivering the cake—a focal point of the
wedding celebration—Phillips sometimes stays and interacts with the
guests at the wedding. And the guests often recognize his creations
and seek his bakery out afterward. Phillips also sees the inherent
symbolism in wedding cakes. To him, a wedding cake inherently
communicates that “a wedding has occurred, a marriage has begun,
and the couple should be celebrated.” App. 162.

															Wedding cakes do, in fact, communicate this
message. A tradition from Victorian England that made its way to
America after the Civil War, “[w]edding cakes are so packed with
symbolism that it is hard to know where to begin.” M. Krondl, Sweet
Invention: A History of Dessert 321 (2011) (Krondl); see also ibid. (explaining the symbolism behind the color, texture,
flavor, and cutting of the cake). If an average person walked into
a room and saw a white, multi-tiered cake, he would immediately
know that he had stumbled upon a wedding. The cake is “so
standardised and inevitable a part of getting married that few ever
think to question it.” Charsley, Interpretation and Custom: The
Case of the Wedding Cake, 22 Man 93, 95 (1987). Almost no wedding,
no matter how spartan, is missing the cake. See id., at 98.
“A whole series of events expected in the context of a wedding
would be impossible without it: an essential photograph, the
cutting, the toast, and the distribution of both cake and favours
at the wedding and afterwards.” Ibid. Although the cake is
eventually eaten, that is not its primary purpose. See id., at 95 (“It is not unusual to hear people declaring that they do not
like wedding cake, meaning that they do not like to eat it. This
includes people who are, without question, having such cakes for
their weddings”); id., at 97 (“Nothing is made of the eating
itself”); Krondl 320–321 (explaining that wedding cakes have long
been described as “inedible”). The cake’s purpose is to mark the
beginning of a new marriage and to celebrate the couple.[ 2 ]

															Accordingly, Phillips’ creation of custom
wedding cakes is expressive. The use of his artistic talents to
create a well-recognized symbol that celebrates the beginning of a
marriage clearly communicates a message—certainly more so than nude
dancing, Barnes v. Glen Theatre, Inc. , 501 U. S.
560, 565–566 (1991), or flying a plain red flag, Stromberg v. California , 283 U. S. 359, 369 (1931).[ 3 ] By forcing Phillips to create custom
wedding cakes for same-sex weddings, Colorado’s
public-accommodations law “alter[s] the expressive content” of his
message. Hurley , 515 U. S., at 572. The meaning of
expressive conduct, this Court has explained, depends on “the
context in which it occur[s].” Johnson , 491 U. S., at
405. Forcing Phillips to make custom wedding cakes for same-sex
marriages requires him to, at the very least, acknowledge that
same-sex weddings are “weddings” and suggest that they should be
celebrated—the precise message he believes his faith forbids. The
First Amendment prohibits Colorado from requiring Phillips to “bear
witness to [these] fact[s],” Hurley , 515 U. S., at 574,
or to “affir[m] . . . a belief with which [he]
disagrees,” id., at 573.

															B

															The Colorado Court of Appeals nevertheless
concluded that Phillips’ conduct was “not sufficiently expressive”
to be protected from state compulsion. 370 P. 3d, at 283. It
noted that a reasonable observer would not view Phillips’ conduct
as “an endorsement of same-sex marriage,” but rather as mere
“compliance” with Colorado’s public-accommodations law. Id., at 286–287 (citing Rumsfeld v. Forum for Academic and
Institutional Rights, Inc. , 547 U. S. 47, 64–65 (2006)
( FAIR ); Rosenberger v. Rector and Visitors of
Univ. of Va. , 515 U. S. 819, 841–842 (1995); PruneYard
Shopping Center v. Robins , 447 U. S. 74, 76–78
(1980)). It also emphasized that Masterpiece could “disassociat[e]”
itself from same-sex marriage by posting a “disclaimer” stating
that Colorado law “requires it not to discriminate” or that “the
provision of its services does not constitute an endorsement.” 370
P. 3d, at 288. This reasoning is badly misguided.

															1

															The Colorado Court of Appeals was wrong to
conclude that Phillips’ conduct was not expressive because a
reasonable observer would think he is merely complying with
Colorado’s public-accommodations law. This argument would justify
any law that compelled protected speech. And, this Court has never
accepted it. From the beginning, this Court’s compelled-speech
precedents have rejected arguments that “would resolve every issue
of power in favor of those in authority.” Barnette , 319
U. S., at 636. Hurley , for example, held that the
application of Massachusetts’ public-accommodations law “requir[ed]
[the organizers] to alter the expressive content of their parade.”
515 U. S., at 572–573. It did not hold that reasonable
observers would view the organizers as merely complying with
Massachusetts’ public-accommodations law.

															The decisions that the Colorado Court of Appeals
cited for this proposition are far afield. It cited three decisions
where groups objected to being forced to provide a forum for a
third party’s speech. See FAIR , supra , at 51 (law
school refused to allow military recruiters on campus); Rosenberger , supra , at 822–823 (public university
refused to provide funds to a religious student paper); PruneYard , supra , at 77 (shopping center refused to
allow individuals to collect signatures on its property). In those
decisions, this Court rejected the argument that requiring the
groups to provide a forum for third-party speech also required them
to endorse that speech. See FAIR , supra , at 63–65; Rosenberger , supra , at 841–842; PruneYard , supra , at 85–88. But these decisions do not suggest that the
government can force speakers to alter their own message.
See Pacific Gas & Elec. , 475 U. S., at 12 (“Notably
absent from PruneYard was any concern that access
. . . might affect the shopping center owner’s exercise
of his own right to speak”); Hurley , supra , at 580
(similar).

															The Colorado Court of Appeals also noted that
Masterpiece is a “for-profit bakery” that “charges its customers.”
370 P. 3d, at 287. But this Court has repeatedly rejected the
notion that a speaker’s profit motive gives the government a freer
hand in compelling speech. See Pacific Gas & Elec. , supra , at 8, 16 (collecting cases); Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc. ,
425 U. S. 748, 761 (1976) (deeming it “beyond serious dispute”
that “[s]peech . . . is protected even though it is
carried in a form that is ‘sold’ for profit”). Further, even
assuming that most for-profit companies prioritize maximizing
profits over communicating a message, that is not true for
Masterpiece Cakeshop. Phillips routinely sacri- fices profits to
ensure that Masterpiece operates in a way that represents his
Christian faith. He is not open on Sundays, he pays his employees a
higher-than-average wage, and he loans them money in times of need.
Phillips also refuses to bake cakes containing alcohol, cakes with
racist or homophobic messages, cakes criticizing God, and cakes
celebrating Halloween—even though Halloween is one of the most
lucrative seasons for bakeries. These efforts to exercise control
over the messages that Masterpiece sends are still more evidence
that Phillips’ conduct is expressive. See Miami Herald
Publishing Co. v. Tornillo , 418 U. S. 241, 256–258
(1974); Walker v. Texas Div., Sons of Confederate
Veterans, Inc. , 576 U. S. ___, ___ (2015) (slip op., at
15).

															2

															The Colorado Court of Appeals also erred by
suggesting that Phillips could simply post a disclaimer,
disassociating Masterpiece from any support for same-sex marriage.
Again, this argument would justify any law compelling speech. And
again, this Court has rejected it. We have described similar
arguments as “beg[ging] the core question.” Tornillo , supra , at 256. Because the government cannot compel speech,
it also cannot “require speakers to affirm in one breath that which
they deny in the next.” Pacific Gas & Elec. , 475
U. S., at 16; see also id., at 15, n. 11 (citing PruneYard , 447 U. S., at 99 (Powell, J., concurring in
part and concurring in judgment)). States cannot put individuals to
the choice of “be[ing] compelled to affirm someone else’s belief”
or “be[ing] forced to speak when [they] would prefer to remain
silent.” Id., at 99.

															III

															Because Phillips’ conduct (as described by the
Colorado Court of Appeals) was expressive, Colorado’s
public-accommodations law cannot penalize it unless the law
withstands strict scrutiny. Although this Court sometimes reviews
regulations of expressive conduct under the more lenient test
articulated in O’Brien ,[ 4 ] that test does not apply unless the government would
have punished the conduct regardless of its expressive component.
See, e.g., Barnes , 501 U. S., at 566–572
(applying O’Brien to evaluate the application of a general
nudity ban to nude dancing); Clark , 468 U. S., at 293
(applying O’Brien to evaluate the application of a general
camping ban to a demonstration in the park). Here, however,
Colorado would not be punishing Phillips if he refused to create
any custom wedding cakes; it is punishing him because he refuses to
create custom wedding cakes that express approval of same-sex
marriage. In cases like this one, our precedents demand “ ‘the
most exacting scrutiny.’ ” Johnson , 491 U. S., at
412; accord, Holder v. Humanitarian Law Project , 561
U. S. 1, 28 (2010).

															The Court of Appeals did not address whether
Colo- rado’s law survives strict scrutiny, and I will not do so in
the first instance. There is an obvious flaw, however, with one of
the asserted justifications for Colorado’s law. According to the
individual respondents, Colorado can compel Phillips’ speech to
prevent him from “ ‘denigrat[ing] the dignity’ ” of
same-sex couples, “ ‘assert[ing] [their] inferior-
ity,’ ” and subjecting them to “ ‘humiliation,
frustration, and embarrassment.’ ” Brief for Respondents Craig
et al. 39 (quoting J. E. B. v. Alabama ex rel. T.
B. , 511 U. S. 127, 142 (1994); Heart of Atlanta Motel,
Inc. v. United States , 379 U. S. 241, 292 (1964)
(Goldberg, J., concurring)). These justifications are completely
foreign to our free-speech jurisprudence.

															States cannot punish protected speech because
some group finds it offensive, hurtful, stigmatic, unreasonable, or
undignified. “If there is a bedrock principle underlying the First
Amendment, it is that the government may not prohibit the
expression of an idea simply because society finds the idea itself
offensive or disagreeable.” Johnson , supra , at 414. A
contrary rule would allow the government to stamp out virtually any
speech at will. See Morse v. Frederick , 551
U. S. 393, 409 (2007) (“After all, much political and
religious speech might be perceived as offensive to some”). As the
Court reiterates today, “it is not . . . the role of the
State or its officials to prescribe what shall be offensive.” Ante, at 16. “ ‘Indeed, if it is the speaker’s opinion
that gives offense, that consequence is a reason for according it
constitutional protection.’ ” Hustler Magazine, Inc. v. Falwell , 485 U. S. 46, 55 (1988); accord, Johnson , supra , at 408–409. If the only reason a
public-accommodations law regulates speech is “to produce a society
free of . . . biases” against the protected groups, that
purpose is “decidedly fatal” to the law’s constitutionality, “for
it amounts to nothing less than a proposal to limit speech in the
service of orthodox expression.” Hurley , 515 U. S., at
578–579; see also United States v. Playboy Entertainment
Group, Inc. , 529 U. S. 803, 813 (2000) (“Where the
designed benefit of a content-based speech restriction is to shield
the sensibilities of listeners, the general rule is that the right
of expression prevails”). “[A] speech burden based on audience
reactions is simply government hostility . . . in a
different guise.” Matal v. Tam , 582 U. S. ___,
___ (2017) (Kennedy, J., concurring in part and concurring in
judgment) (slip op., at 4).

															Consider what Phillips actually said to the
individual respondents in this case. After sitting down with them
for a consultation, Phillips told the couple, “ ‘I’ll make
your birthday cakes, shower cakes, sell you cookies and brownies, I
just don’t make cakes for same sex weddings.’ ” App. 168. It
is hard to see how this statement stigmatizes gays and lesbians
more than blocking them from marching in a city parade, dismissing
them from the Boy Scouts, or subjecting them to signs that say “God
Hates Fags”—all of which this Court has deemed protected by the
First Amendment. See Hurley , supra , at 574–575; Dale , 530 U. S., at 644; Snyder v. Phelps , 562 U. S. 443, 448 (2011). Moreover, it is also
hard to see how Phillips’ statement is worse than the racist,
demeaning, and even threatening speech toward blacks that this
Court has tolerated in previous decisions. Concerns about “dignity”
and “stigma” did not carry the day when this Court affirmed the
right of white supremacists to burn a 25-foot cross, Virginia v. Black , 538 U. S. 343 (2003); conduct
a rally on Martin Luther King Jr.’s birthday, Forsyth County v. Nationalist Movement , 505 U. S. 123 (1992); or
circulate a film featuring hooded Klan members who were brandishing
weapons and threatening to “ ‘Bury the niggers,’ ” Brandenburg v. Ohio , 395 U. S. 444, 446, n. 1
(1969) ( per curiam ).

															Nor does the fact that this Court has now
decided Obergefell v. Hodges , 576 U. S. ___
(2015), somehow diminish Phillips’ right to free speech. “It is one
thing . . . to conclude that the Constitution protects a
right to same-sex marriage; it is something else to portray
everyone who does not share [that view] as bigoted” and unentitled
to express a different view. Id. , at ___ (Roberts,
C. J., dissenting) (slip op., at 29). This Court is not an
authority on matters of conscience, and its decisions can (and
often should) be criticized. The First Amendment gives individuals
the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself
emphasized that the traditional understanding of marriage “long has
been held—and continues to be held—in good faith by reasonable and
sincere people here and throughout the world.” Id ., at ___
(majority opinion) (slip op., at 4). If Phillips’ continued
adherence to that understanding makes him a minority after Obergefell , that is all the more reason to insist that his
speech be protected. See Dale , supra , at 660 (“[T]he
fact that [the social acceptance of homosexuality] may be embraced
and advocated by increasing numbers of people is all the more
reason to protect the First Amendment rights of those who wish to
voice a different view”).

															*  *  *

															In Obergefell , I warned that the
Court’s decision would “inevitabl[y] . . . come into
conflict” with religious liberty, “as individuals . . .
are confronted with demands to participate in and endorse civil
marriages between same-sex couples.” 576 U. S., at ___
(dissenting opinion) (slip op., at 15). This case proves that the
conflict has already emerged. Because the Court’s decision
vindicates Phillips’ right to free exercise, it seems that
religious liberty has lived to fight another day. But, in future
cases, the freedom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of
dissent” and “vilify Americans who are unwilling to assent to the
new orthodoxy.” Id., at ___ (Alito, J., dissenting) (slip
op., at 6). If that freedom is to maintain its vitality, reasoning
like the Colorado Court of Appeals’ must be rejected. Notes 1 Barnes v. Glen
Theatre, Inc. , 501 U. S. 560, 565–566 (1991); Texas v. Johnson , 491 U. S. 397, 405–406 (1989); Spence v. Washington , 418 U. S. 405, 406,
409–411 (1974) ( per curiam ); Schacht v. United
States , 398 U. S. 58, 62–63 (1970); Tinker v. Des Moines Independent Community School Dist. , 393
U. S. 503, 505–506 (1969); Brown v. Louisiana ,
383 U. S. 131, 141–142 (1966) (opinion of Fortas, J.); West
Virginia Bd. of Ed. v. Barnette , 319 U. S. 624,
633–634 (1943); Stromberg v. California , 283
U. S. 359, 361, 369 (1931). 2 The Colorado Court of
Appeals acknowledged that “a wedding cake, in some circumstances,
may convey a particularized message celebrating same-sex marriage,”
depending on its “design” and whether it has “written
inscriptions.” Craig v. Masterpiece Cakeshop, Inc. ,
370 P. 3d 272, 288 (2015). But a wedding cake needs no
particular design or written words to communicate the basic message
that a wedding is occurring, a marriage has begun, and the couple
should be celebrated. Wedding cakes have long varied in color,
decorations, and style, but those differences do not prevent people
from recognizing wedding cakes as wedding cakes. See Charsley,
Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93,
96 (1987). And regardless, the Commission’s order does not
distinguish between plain wedding cakes and wedding cakes with
particular designs or inscriptions; it requires Phillips to make
any wedding cake for a same-sex wedding that he would make for an
opposite-sex wedding. 3 The dissent faults
Phillips for not “submitting . . . evidence” that wedding
cakes communicate a message. Post, at 2, n. 1 (opinion
of Ginsburg, J.). But this requirement finds no support in our
precedents. This Court did not insist that the parties submit
evidence detailing the expressive nature of parades, flags, or nude
dancing. See Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, Inc. , 515 U. S. 557, 568–570
(1995); Spence , 418 U. S., at 410–411; Barnes ,
501 U. S., at 565–566. And we do not need extensive evidence
here to conclude that Phillips’ artistry is expressive, see Hurley , 515 U. S., at 569, or that wedding cakes at
least communicate the basic fact that “this is a wedding,” see id., at 573–575. Nor does it matter that the couple also
communicates a message through the cake. More than one person can
be engaged in protected speech at the same time. See id. , at
569–570. And by forcing him to provide the cake, Colorado is
requiring Phillips to be “intimately connected” with the couple’s
speech, which is enough to implicate his First Amendment rights.
See id., at 576. 4 “[A] government
regulation [of expressive conduct] is sufficiently justified if it
is within the constitutional power of the Government; if it
furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First
Amendment freedoms is no greater than is essential to the
furtherance of that interest.” United States v. O’Brien , 391 U. S. 367, 377 (1968). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 16–111

															_________________

															MASTERPIECE CAKESHOP, LTD., et al.,
PETITIONERS v. COLORADO CIVIL RIGHTS COMMISSION,
et al.

															on writ of certiorari to the court of appeals
of colorado

															[June 4, 2018]

															Justice Ginsburg, with whom Justice Sotomayor
joins, dissenting.

															There is much in the Court’s opinion with which
I agree. “[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.” Ante, at 9. “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.” Ante, at 10. “[P]urveyors of goods and services who
object to gay marriages for moral and religious reasons [may not]
put up signs saying ‘no goods or services will be sold if they will
be used for gay marriages.’ ” Ante, at 12. Gay persons may
be spared from “indignities when they seek goods and services in an
open market.” Ante, at 18.[ 1 ] I strongly disagree, however, with the Court’s
conclusion that Craig and Mullins should lose this case. All of the
above-quoted statements point in the opposite direction.

															The Court concludes that “Phillips’ religious
objection was not considered with the neutrality that the Free
Exercise Clause requires.” Ante, at 17. This conclusion
rests on evidence said to show the Colorado Civil Rights
Commission’s (Commission) hostility to religion. Hostility is
discernible, the Court maintains, from the asserted “disparate
consideration of Phillips’ case compared to the cases of” three
other bakers who refused to make cakes requested by William Jack,
an amicus here. Ante, at 18. The Court also finds
hostility in statements made at two public hearings on Phillips’
appeal to the Commission. Ante, at 12–14. The different
outcomes the Court features do not evidence hostility to religion
of the kind we have previously held to signal a free-exercise
violation, nor do the comments by one or two members of one of the
four decisionmaking entities considering this case justify
reversing the judgment below.

															I

															On March 13, 2014—approximately three months
after the ALJ ruled in favor of the same-sex couple, Craig and
Mullins, and two months before the Commission heard Phillips’
appeal from that decision—William Jack visited three Colorado
bakeries. His visits followed a similar pattern. He requested two
cakes

															“made to resemble an open Bible. He also
requested that each cake be decorated with Biblical verses. [He]
requested that one of the cakes include an image of two groomsmen,
holding hands, with a red ‘X’ over the image. On one cake, he
requested [on] one side[,] . . .  ‘God hates sin.
Psalm 45:7’ and on the opposite side of the cake ‘Homosexuality is
a detestable sin. Leviticus 18:2.’ On the second cake, [the one]
with the image of the two groomsmen covered by a red ‘X’ [Jack]
requested [these words]: ‘God loves sinners’ and on the other side
‘While we were yet sinners Christ died for us. Romans 5:8.’ ” App.
to Pet. for Cert. 319a; see id., at 300a, 310a.

															In contrast to Jack, Craig and Mullins simply
requested a wedding cake: They mentioned no message or anything
else distinguishing the cake they wanted to buy from any other
wedding cake Phillips would have sold.

															One bakery told Jack it would make cakes in the
shape of Bibles, but would not decorate them with the requested
messages; the owner told Jack her bakery “does not discriminate”
and “accept[s] all humans.” Id. , at 301a (internal quotation
marks omitted). The second bakery owner told Jack he “had done open
Bibles and books many times and that they look amazing,” but
declined to make the specific cakes Jack described because the
baker regarded the messages as “hateful.” Id. , at 310a
(internal quotation marks omitted). The third bakery, according to
Jack, said it would bake the cakes, but would not include the
requested message. Id. , at 319a.[ 2 ]

															Jack filed charges against each bakery with the
Colo- rado Civil Rights Division (Division). The Division found no
probable cause to support Jack’s claims of unequal treatment and
denial of goods or services based on his Christian religious
beliefs. Id. , at 297a, 307a, 316a. In this regard, the
Division observed that the bakeries regularly produced cakes and
other baked goods with Christian symbols and had denied other
customer requests for designs demeaning people whose dignity the
Colorado Antidiscrimination Act (CADA) protects. See id. , at
305a, 314a, 324a. The Commission summarily affirmed the Division’s
no-probable-cause finding. See id., at 326a–331a.

															The Court concludes that “the Commission’s
consideration of Phillips’ religious objection did not accord with
its treatment of [the other bakers’] objections.” Ante, at
15. See also ante, at 5–7 (Gorsuch, J., concurring). But the
cases the Court aligns are hardly comparable. The bakers would have
refused to make a cake with Jack’s requested message for any
customer, regardless of his or her religion. And the bakers visited
by Jack would have sold him any baked goods they would have sold
anyone else. The bakeries’ refusal to make Jack cakes of a kind
they would not make for any customer scarcely resembles Phillips’
refusal to serve Craig and Mullins: Phillips would not sell
to Craig and Mullins, for no reason other than their sexual
orientation, a cake of the kind he regularly sold to others. When a
couple contacts a bakery for a wedding cake, the product they are
seeking is a cake celebrating their wedding—not a cake
celebrating heterosexual weddings or same-sex weddings—and that is
the service Craig and Mullins were denied. Cf. ante, at 3–4,
9–10 (Gorsuch, J., concurring). Colorado, the Court does not
gainsay, prohibits precisely the discrimination Craig and Mullins
encountered. See supra, at 1. Jack, on the other hand,
suffered no service refusal on the basis of his religion or any
other protected characteristic. He was treated as any other
customer would have been treated—no better, no worse.[ 3 ]

															The fact that Phillips might sell other cakes
and cookies to gay and lesbian customers[ 4 ] was irrelevant to the issue Craig and Mullins’ case
presented. What matters is that Phillips would not provide a good
or service to a same-sex couple that he would provide to a
heterosexual couple. In contrast, the other bakeries’ sale of other
goods to Christian customers was relevant: It shows that there were
no goods the bakeries would sell to a non-Christian customer that
they would refuse to sell to a Christian customer. Cf. ante, at 15.

															Nor was the Colorado Court of Appeals’
“difference in treatment of these two instances . . .
based on the government’s own assessment of offensiveness.” Ante, at 16. Phillips declined to make a cake he found
offensive where the offensiveness of the product was determined
solely by the identity of the customer requesting it. The three
other bakeries declined to make cakes where their objection to the
product was due to the demeaning message the requested product
would literally display. As the Court recognizes, a refusal “to
design a special cake with words or images . . . might be
different from a refusal to sell any cake at all.” Ante, at
2.[ 5 ] The Colorado Court of
Appeals did not distinguish Phillips and the other three bakeries
based simply on its or the Division’s finding that messages in the
cakes Jack requested were offensive while any message in a cake for
Craig and Mullins was not. The Colorado court distinguished the
cases on the ground that Craig and Mullins were denied service
based on an aspect of their identity that the State chose to grant
vigorous protection from discrimination. See App. to Pet. for Cert.
20a, n. 8 (“The Division found that the bakeries did not
refuse [Jack’s] request because of his creed, but rather because of
the offensive nature of the requested message. . . .
[T]here was no evidence that the bakeries based their decisions on
[Jack’s] religion . . . [whereas Phillips]
discriminat[ed] on the basis of sexual orientation.”). I do not
read the Court to suggest that the Colorado Legislature’s decision
to include certain protected characteristics in CADA is an
impermissible government prescription of what is and is not
offensive. Cf. ante, at 9–10. To repeat, the Court affirms
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.” Ante, at 10.

															II

															Statements made at the Commission’s public
hearings on Phillips’ case provide no firmer support for the
Court’s holding today. Whatever one may think of the statements in
historical context, I see no reason why the comments of one or two
Commissioners should be taken to overcome Phillips’ refusal to sell
a wedding cake to Craig and Mullins. The proceedings involved
several layers of independent decisionmaking, of which the
Commission was but one. See App. to Pet. for Cert. 5a–6a. First,
the Division had to find probable cause that Phillips violated
CADA. Second, the ALJ entertained the parties’ cross-motions for
summary judgment. Third, the Commission heard Phillips’ appeal.
Fourth, after the Commission’s ruling, the Colorado Court of
Appeals considered the case de novo . What prejudice
infected the determinations of the adjudicators in the case before
and after the Commission? The Court does not say. Phillips’ case is
thus far removed from the only precedent upon which the Court
relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah ,
508 U. S. 520 (1993), where the government action that
violated a principle of religious neutrality implicated a sole
decisionmaking body, the city council, see id., at
526–528.

															*  *  *

															For the reasons stated, sensible application
of CADA to a refusal to sell any wedding cake to a gay couple
should occasion affirmance of the Colorado Court of Appeals’
judgment. I would so rule. Notes 1 As Justice Thomas
observes, the Court does not hold that wedding cakes are speech or
expression entitled to First Amendment protection. See ante, at 1 (opinion concurring in part and concurring in judgment). Nor
could it, consistent with our First Amendment precedents. Justice
Thomas acknowledges that for conduct to constitute protected
expression, the conduct must be reasonably understood by an
observer to be communicative. Ante, at 4 (citing Clark v. Community for Creative Non-Violence , 468
U. S. 288, 294 (1984)). The record in this case is replete
with Jack Phillips’ own views on the messages he believes his cakes
convey. See ante, at 5–6 (Thomas, J., concurring in part and
concurring in judgment) (describing how Phillips “considers” and
“sees” his work). But Phillips submitted no evidence showing that
an objective observer understands a wedding cake to convey a
message, much less that the observer understands the message to be
the baker’s, rather than the marrying couple’s. Indeed, some in the
wedding industry could not explain what message, or whose, a
wedding cake conveys. See Charsley, Interpretation and Custom: The
Case of the Wedding Cake, 22 Man 93, 100–101 (1987) (no explanation
of wedding cakes’ symbolism was forthcoming “even amongst those who
might be expected to be the experts”); id., at 104–105 (the
cake cutting tradition might signify “the bride and groom . . . as
appropriating the cake” from the bride’s parents). And Phillips
points to no case in which this Court has suggested the provision
of a baked good might be expressive conduct. Cf. ante, at 7,
n. 2 (Thomas, J., concurring in part and concurring in
judgment); Hurley v. Irish-American Gay, Lesbian, and
Bisexual Group of Boston, Inc. , 515 U. S. 557, 568–579
(1995) (citing previous cases recognizing parades to be
expressive); Barnes v. Glen Theatre, Inc. , 501
U. S. 560, 565 (1991) (noting precedents suggesting nude
dancing is expressive conduct); Spence v. Washington ,
418 U. S. 405, 410 (1974) (observing the Court’s decades-long
recognition of the symbolism of flags). 2 The record provides no
ideological explanation for the bakeries’ refusals. Cf. ante, at 1–2, 9, 11 (Gorsuch, J., concurring) (describing
Jack’s requests as offensive to the bakers’ “secular”
convictions). 3 Justice Gorsuch argues
that the situations “share all legally sa-lient features.” Ante, at 4 (concurring opinion). But what
criticallydifferentiates them is the role the customer’s
“statutorily protected trait,” ibid. , played in the denial
of service. Change Craig and Mullins’ sexual orientation (or sex),
and Phillips would have provided the cake. Change Jack’s religion,
and the bakers would have been no more willing to comply with his
request. The bakers’ objections to Jack’s cakes had nothing to do
with “religious opposition to same-sex weddings.” Ante, at 6
(Gorsuch, J., concurring). Instead, the bakers simply refused to
make cakes bearing statements demeaning to people protected by
CADA. With respect to Jack’s second cake, in particular, where he
requested an image of two groomsmen covered by a red “X” and the
lines “God loves sinners” and “While we were yet sinners Christ
died for us,” the bakers gave not the slightest indication that
religious words, rather than the demeaning image, prompted the
objection. See supra, at 3. Phillips did, therefore,
discriminate because of sexual orientation; the other bakers
did not discriminate because of religious belief; and the
Commission properly found discrimination in one case but not the
other. Cf. ante, at 4–6 (Gorsuch, J.,
concurring). 4 But see ante, at 7
(majority opinion) (acknowledging that Phillips refused to sell to
a lesbian couple cupcakes for a celebration of their
union). 5 The Court undermines this
observation when later asserting that the treatment of Phillips, as
compared with the treatment of the other three bakeries, “could
reasonably be interpreted as being inconsistent as to the question
of whether speech is involved.” Ante, at 15. But recall
that, while Jack requested cakes with particular text inscribed,
Craig and Mullins were refused the sale of any wedding cake at all.
They were turned away before any specific cake design could be
discussed. (It appears that Phillips rarely, if ever, produces
wedding cakes with words on them—or at least does not advertise
such cakes. See Masterpiece Cakeshop, Wedding,
http://www.masterpiececakes.com/ wedding-cakes (as last visited
June 1, 2018) (gallery with 31 wedding cake images, none of which
exhibits words).) The Division and the Court of Appeals could
rationally and lawfully distinguish between a case involving
disparaging text and images and a case involving a wedding cake of
unspecified design. The distinction is not between a cake with text
and one without, see ante, at 8–9 (Gorsuch, J., concurring);
it is between a cake with a particular design and one whose form
was never even discussed.