Article Overview Written by Mike Steenson, Bell Distinguished Professor of Law at Mitchell Hamline.
The Supreme Court’s opinion in Masterpiece Cakeshop  is not by any means the culmination of the collision of religious beliefs and anti-discrimination laws, but really just the beginning. The Court’s seemingly narrow resolution of the case based on the Colorado Civil Rights Commission’s hostility to master baker Jack Phillips’ free exercise claim is not likely to provide a ready basis for resolving the conflicts that arise when service providers seemingly violate anti-discrimination laws by refusing to provide certain services because of the sexual orientation of their potential customers, in substantial part because of the large shadow that compelled speech doctrine casts over these cases.
There are two basic ways to look at the claims for exemption of anti-discrimination laws. One view is that the states are simply trying to enforce neutral anti-discrimination laws that require places of public accommodation to provide services without discriminating on the basis sexual orientation. The other view is that requiring someone to provide those services when it is inconsistent with deeply held religious beliefs, religious or otherwise, violates their right to free exercise of religion and freedom of speech.
In holding that the Colorado Civil Rights Commission violated baker Jack Phillips’ right to free exercise of religion, the Supreme Court clearly established that hostility to religion in the enforcement of an anti-discrimination law will not be permitted. The principle is important, but of narrow application. The Court bypassed the free speech because of a lack of clarity in the record as to whether Phillips refused to bake any wedding cake for Craig and Mullins, or just a cake with a specific message celebrating same-sex marriage.
In a jeremiad in his concurring opinion, Justice Thomas reminded us of the conflict he said would be created by continuing attempts to impose a new orthodoxy on Americans who object to same-sex marriage. He saw the Court’s opinion in Masterpiece Cakeshop as preserving Phillips’ right to religious liberty as surviving to fight another day, but he also provided a template for the free speech argument against the application of an anti-discrimination law that required a baker to provide a wedding cake for a same-sex couple constitutes compelled speech in violation of the First Amendment. Each case involving the conflict will have to focus on whether the service provider’s conduct is expressive, and whether requiring compliance with an anti-discrimination law will constitute compelled speech because it interferes with a creative element in a way that compliance would effectively force the provider to endorse an antithetical message. There are no easy answers and no way to avoid the harm, whether it is to business owners who may be punished for adhering to their religious beliefs, or, if the religious beliefs justify an exemption, for the emotional harm done to those who are denied service because of their sexual orientation.
Full article available in Volume 45, Sua Sponte, Summer 2019
 Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).