Last week the U.S. Supreme Court heard arguments concerning a Colorado baker who was willing to sell a same sex couple a wedding cake, but had refused to design it to the couple’s specifications because of religious beliefs.  The baker, Jack Phillips, the owner of Masterpiece Cakes, in court records stated that he "gladly serves people from all walks of life, including individuals of all races, faiths, and sexual orientations. But he cannot design custom cakes that express ideas or celebrate events at odds with his religious beliefs."

David Mullins and Charlie Craig were planning their wedding reception and made an appointment to discuss a custom cake with Phillips. When he learned that Mullins and Craig were a couple, Phillips indicated that he did not design cakes for gay wedding celebrations but that he would be willing to sell them other prepared cakes or baked goods. The two left the store. 

The couple then filed a complaint with the Colorado Civil Rights Division, which agreed that Phillips' conduct violated state law. A protected class under Colorado EEO law is sexual orientation.  Colorado courts have sided with the couple, who say they were "denied the same full and equal service that would've been provided to any other customer."

As can be expected, this case has many supporters on both sides.  The Trump Administration supports Phillips, while a number support the couple.  Approximately 100 amicus briefs were filed for one side or the other. 

Phillips argues that the state law requiring him to bake cakes for couples like Mullins and Craig would constitute compelled speech, in violation of the First Amendment, or would violate his religious exercise rights under the First Amendment's free exercise clause.  On the other hand, the couple and Colorado could prevail if the Court finds that neither the speech nor the religion guarantees of the First Amendment permit Phillips to discriminate on the basis of sexual orientation in his commercial activity.

“Every American should be free to choose which art they will create and which art they won’t create without fear of being unjustly punished by the government,” said David Cortman, senior counsel for Alliance Defending Freedom. “It imperils everyone’s freedom by crushing dissent instead of tolerating a diversity of views. We are all at risk when government is able to punish citizens like Jack just because it doesn’t like how he exercises his artistic freedom.”

Others believe that creating a “religious liberty exemption” to the law would open a Pandora’s box supporting discrimination.  Americans United for Separation of Church and State, a lobbying group, wrote in an amicus brief to the Colorado court that “restaurants, hotels, hairdressers, clothing vendors, and other businesses whose proprietors object to deploying their ‘artistic’ services to facilitate a same-sex wedding would be entitled to the same exemption.”

The case result will likely depend on Justice Kennedy, who wrote the decision upholding same sex marriage.  Justice Kennedy asked a lawyer for the Trump administration whether the baker could put a sign in his window saying, “We don’t bake cakes for gay weddings.” The lawyer said yes, so long as the cakes were custom made.  At no time did Phillips show his unwillingness to sell any cake in stock to the couple.  However, Justice Kennedy thought that the administration’s position was an affront to the dignity of gay couples.  However, later in the arguments Justice Kennedy then stated that “tolerance is essential in a free society. It seems to me that the state in its position here has neither been tolerant nor respectful of Mr. Phillips’s religious beliefs.”   

The outcome is unclear, and it is expected to be a close decision announced in June.   

So how will this case impact employers?  If the couple wins, it should truly legitimize employer diversity initiatives, which are under attack in some quarters.  It will also provide support for various types of employer initiatives from succession planning for underrepresented groups to community outreach and recruitment.  However, it does not stop the religious accommodation analysis that should be done by employers when a legitimate religious belief is espoused by an employee.  Think of the “Mark of the Beast” case when using biometrics for timekeeping for example.

If the baker wins, this case could lead to a line of cases allowing employers to discriminate against applicants and employees when they have a “legitimate” religious belief against or concerning LGBTQ, other religions, or even gender roles.    This case could also lead to a line of cases of permitting discriminatory behavior by employees and managers against other employees as they hold “legitimate” religious beliefs.  It seems unlikely at this time such an expansive interpretation could occur, but employers need to be diligent.  Yet diversity initiatives could backfire and lead to the litigious employee, who may have a sympathetic ear in the Courts.