Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n

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

et al.

certiorari to the court of appeals of colorado

No. 16–111. Argued December 5, 2017—Decided June 4, 2018 Masterpiece Cakeshop, Ltd., is a Colorado bakery owned and operated by Jack Phillips, an expert baker and devout Christian. In 2012 he told a same-sex couple that he would not create a cake for their wedding celebration because of his religious opposition to same-sex marriages— marriages that Colorado did not then recognize—but that he would sell them other baked goods, e. g., birthday cakes. The couple filed a charge with the Colorado Civil Rights Commission (Commission) pursuant to the Colorado Anti-Discrimination Act (CADA), which prohibits, as relevant here, discrimination based on sexual orientation in a “place of business engaged in any sales to the public and any place offering services . . . to the public.” Under CADA's administrative review system, the Colorado Civil Rights Division first found probable cause for a violation and referred the case to the Commission. The Commission then referred the case for a formal hearing before a State Administrative Law Judge (AL J), who ruled in the couple's favor. In so doing, the AL J rejected Phillips' First Amendment claims: that requiring him to create a cake for a same-sex wedding would violate his right to free speech by compelling him to exercise his artistic talents to express a message with which he disagreed and would violate his right to the free exercise of religion. Both the Commission and the Colorado Court of Appeals affirmed. Held: The Commission's actions in this case violated the Free Exercise Clause. Pp. 631–640. (a) The laws and the Constitution can, and in some instances must, protect gay persons and gay couples in the exercise of their civil rights, but religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression. See Ober-gefell v. Hodges, 576 U. S. 644, 679–680. While it is unexceptional that Colorado law can protect gay persons in acquiring products and services on the same terms and conditions as are offered to other members of the public, the law must be applied in a manner that is neutral toward religion. To Phillips, his claim that using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component

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Syllabus

and implicates his deep and sincere religious beliefs. His dilemma was understandable in 2012, which was before Colorado recognized the validity of gay marriages performed in the State and before this Court issued United States v. Windsor , 570 U. S. 744, or Obergefell . Given the State's position at the time, there is some force to Phillips' argument that he was not unreasonable in deeming his decision lawful. State law at the time also afforded storekeepers some latitude to decline to create specific messages they considered offensive. Indeed, while the instant enforcement proceedings were pending, the State Civil Rights Division (Division) concluded in at least three cases that a baker acted lawfully in declining to create cakes with decorations that demeaned gay persons or gay marriages. Phillips too was entitled to a neutral and respectful consideration of his claims in all the circumstances of the case. Pp. 631–634.

(b) That consideration was compromised, however, by the Commission's treatment of Phillips' case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission's formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips' faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission's adjudication of Phillips' case. Another indication of hostility is the different treatment of Phillips' case and the cases of other bakers with objections to anti-gay messages who prevailed before the Commission. The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found Phillips' willingness to do the same irrelevant. The State Court of Appeals' brief discussion of this disparity of treatment does not answer Phillips' concern that the State's practice was to disfavor the religious basis of his objection. Pp. 634–638. (c) For these reasons, 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. The government, consistent with the Constitution's guarantee of free exer-

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cise, 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. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520. 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 his religious beliefs. The Commission gave “every appearance,” id., at 545, of adjudicating his religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it, id., at 537, but government has no role in expressing or even suggesting whether the religious ground for Phillips' conscience-based objection is legitimate or illegitimate. The inference here is thus that Phillips' religious objection was not considered with the neutrality required by the Free Exercise Clause. 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. But the official expressions of hostility to religion in some of the commissioners' comments were inconsistent with that requirement, and the Commission's disparate consideration of Phillips' case compared to the cases of the other bakers suggests the same. Pp. 638–639. 370 P. 3d 272, reversed. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Breyer, Alito, Kagan, and Gorsuch, JJ., joined. Kagan, J., filed a concurring opinion, in which Breyer, J., joined, post, p. 640. Gor-such, J., filed a concurring opinion, in which Alito, J., joined, post, p. 643. Thomas, J., filed an opinion concurring in part and concurring in the judgment, in which Gorsuch, J., joined, post, p. 654. Ginsburg, J., filed a dissenting opinion, in which Sotomayor , J., joined, post, p. 667.

Kristen K. Waggoner argued the cause for petitioners. With her on the briefs were Jeremy D . Tedesco, James A. Campbell, Jonathan A. Scruggs, David A. Cortman, Rory T. Gray , and Nicolle H . Martin.

Solicitor General Francisco argued the cause for the United States as amicus curiae urging reversal. On the Page Proof Pending Publication

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Counsel

brief were Acting Solicitor General Wall, Acting Assistant Attorneys General Readler and Gore, Deputy Assistant Attorney General Mooppan, Morgan L . Goodspeed, Eric Treene, and Lowell V. Sturgill, Jr.

Frederick R. Yarger, Solicitor General of Colorado, argued the cause for respondent Colorado Civil Rights Commission. With him on the brief were Cynthia H . Coffman, Attorney General of Colorado, Vincent E. Morscher , Deputy Attorney General, Glenn E . Roper , Deputy Solicitor General, Stacy L. Worthington, Senior Assistant Attorney General, and Grant T. Sullivan, Assistant Solicitor General. David D . Cole argued the cause for respondent Craig et al. With him on the brief were Ria Tabacco Mar , James D . Esseks, Leslie Cooper, Rachel Wainer Apter, Louise Melling, Rose A. Saxe, Lee Rowland, Amanda W . Shanor , Daniel Mach, Mark Silverstein, Sara R . Neel, and Paula Greisen.*

*Briefs of amici curiae urging reversal were filed for the State of Texas et al. by Ken Paxton, Attorney General of Texas, Scott A. Keller, Solicitor General, Jeffrey C. Mateer , First Assistant Attorney General, J. Campbell Barker, Deputy Solicitor General, and Michael P . Murphy and John C. Sullivan, Assistant Solicitors General, by M. Stephen Pitt, and by the Attorneys General for their respective States as follows: Mark Brnovich of Arizona, Leslie Rutledge of Arkansas, Lawrence G. Wasden of Idaho, Jeff Landry of Louisiana, Joshua D. Hawley of Missouri, Tim Fox of Montana, Doug Peterson of Nebraska, Adam Paul Laxalt of Nevada, Wayne Stenehjem of North Dakota, Mike Hunter of Oklahoma, Alan Wilson of South Carolina, Marty J. Jackley of South Dakota, Herbert H. Slatery III of Tennessee, Sean D. Reyes of Utah, Patrick Morrisey of West Virginia, and Brad Schimel of Wisconsin; for Agudath Israel of America by Jeffrey I. Zuckerman and Andrew Weinstock; for the American College of Pediatricians et al. by Roger G. Brooks, Nikolas T. Nikas, Dorinda C. Bordlee, and Catherine W. Short; for the Becket Fund for Religious Liberty by Eric C. Rassbach, Mark L. Rienzi, Eric S. Baxter, Hannah C. Smith, Diana M. Verm, and Stephanie Hall Barclay; for the Billy Graham Evangelistic Association et al. by Stuart J. Lark; for the C12 Group et al. by Richard C . Baker; for CatholicVote.org by Scott W. Gaylord; for the Cato Institute et al. by Ilya Shapiro and Manuel S. Klausner; for the Center for Constitutional Jurisprudence et al. by John C . Eastman and Anthony T. Caso; for Christian Business Owners by Erin Elizabeth Mersino and William Wagner; for the Christian Law Association by David C . Gibbs,

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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

Jr.; for the Christian Legal Society et al. by Douglas Laycock and Thomas C . Berg; for Concerned Women for America by Steven W. Fitschen; for the Ethics & Religious Liberty Commission of the Southern Baptist Convention et al. by Michael K. Whitehead; for the First Amendment Lawyers Association by Robert Corn-Revere, Ronald G . London, and D . Gill Sper-lein; for the Foundation for Moral Law by John Eidsmoe; for Freedom X et al. by William J . Becker, Jr.; for the Independence Law Center by Randall L. Wenger and Jeremy L. Samek; for the Indiana Family Institute et al. by James Bopp, Jr., and Richard E . Coleson; for International Christian Photographers et al. by Michael J. Norton; for Law and Economics Scholars et al. by David A. Shaneyfelt and Richard A. Epstein; for Liberty Counsel by Mathew D . Staver, Anita L . Staver, Horatio G . Mihet, and Mary E . McAlister; for National Black Religious Broadcasters et al. by David H . Thompson; for the National Jewish Commission on Law and Public Affairs by Nathan Lewin, Alyza D . Lewin, and Dennis Rapps; for the National Legal Foundation et al. by Frederick W . Claybrook, Jr.; for the North Carolina Values Coalition et al. by Deborah J . Dewart and Travis Weber; for Public Advocate of the United States et al. by William J. Olson, Herbert W. Titus, Jeremiah L . Morgan, Robert J. Olson, Joseph W . Miller, and Michael Boos; for the Restoring Religious Freedom Project by David I . Schoen; for the Southeastern Legal Foundation et al. by John J. Park, Jr., and Kimberly S. Hermann; for the Thomas More Society by Thomas Brejcha and Joan M. Mannix; for the United States Conference of Catholic Bishops et al. by John J. Bursch, Anthony R . Picarello, Jr., Jeffrey Hunter Moon, Michael F . Moses, and Hillary E . Byrnes; for United States Senators et al. by Jonathan R. Whitehead; for Utah Republican State Senators by Michael K. Erickson and William C . Duncan; for 33 Family Policy Organizations by David French; for 34 Legal Scholars by David R . Langdon; for 479 Creative Professionals by Nathan W . Kel-lum; for Ryan T. Anderson et al. by Charles S. LiMandri, Paul M. Jonna, and Jeffrey M. Trissell; for Sherif Girgis by Robert P. George; for Christopher R. Green et al. by David R . Upham; for William Jack et al. by Michael Lee Francisco; for Aaron Klein et al. by Kelly J. Shackelford, Hiram

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Opinion of the Court

Civil Rights Commission (or 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

S. Sasser III, Kenneth A. Klukowski, and Herbert G . Grey; for Richard Lawrence by Mr. Lawrence , pro se; for Adam J. MacLeod by Robert Tyler and Jennifer Bursch; for Patrick Mahoney et al. by Thomas P . Monaghan and Walter M. Weber; and for Mark Regnerus et al. by Edward H . Trent.

Briefs of amici curiae urging affirmance were filed for the State of Massachusetts et al. by Maura Healey, Attorney General of Massachusetts, Elizabeth N . Dewar , State Solicitor, and David C . Kravitz, Genevieve C . Nadeau, and Jon Burke , Assistant Attorneys General, by Douglas S. Chin, Attorney General of Hawaii, Clyde J. Wadsworth, Solicitor General, and Kaliko'onalani D . Fernandes, Deputy Solicitor General, and by the Attorneys General of their respective jurisdictions as follows: Xa-vier Becerra of California, George Jepsen of Connecticut, Matthew P . Denn of Delaware, Karl A. Racine of the District of Columbia, Lisa Madi-gan of Illinois, Thomas J . Miller of Iowa, Janet T. Mills of Maine, Brian E . Frosh of Maryland, Lori Swanson of Minnesota, Hector Balderas of New Mexico, Eric T . Schneiderman of New York, Josh Stein of North Carolina, Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Peter F. Kilmartin of Rhode Island, Thomas J . Donovan, Jr., of Vermont, Mark R . Herring of Virginia, and Robert W . Ferguson of Washington; for the County of Santa Clara et al. by James R . Williams, Greta S. Hansen, Julie Wilensky , Zachary W . Carter, Richard Dearing , Michael N . Feuer, James P . Clark, Blithe Smith Bock, and Shaun Dabby Jacobs; for the American Bar Association by Hilarie Bass, Donald B . Verrilli, Jr., Ginger D. Anders, and Chad Golder; for the American Psychological Association et al. by Jessica Ring Amunson, Emily L. Chapuis, Nathalie F . P. Gilfoyle , and Deanne M. Ottaviano; for the American Unity Fund et al. by Eugene Volokh and Dale Carpenter, both pro se; for Americans United for Separation of Church and State et al. by Richard B . Katskee, Steven M. Freeman, Elliot M. Mincberg , and Diane Laviolette; for the Canadian Civil Liberties Association et al. by Maureen P . Alger; for the Center for Inquiry et al. by Edward Tabash; for the Central Conference of American Rabbis et al. by Jeffrey S. Trachtman, Norman C . Simon, Jason M. Moff, and Kurt M. Denk; for Chefs et al. by Pratik A. Shah; for Church-State Scholars by Roberta A. Kaplan; for the Civil Rights Forum by Lawrence A. Organ; for Colorado Organizations et al. by Melissa Hart, Craig J . Konnoth, Evan Wolfson, and Lino S. Lipinsky de Orlov; for Corporate Page Proof Pending Publication

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The case presents difficult questions as to the proper reconciliation of at least two principles. The first is the author-

Law Professors by Andrew D . Silverman and Daniel A. Rubens; for the Denver Metro Chamber of Commerce et al. by John F. Walsh, Paul R . Q. Wolfson, and Alan E . Schoenfeld; for First Amendment Scholars by Elizabeth B. Wydra, Brianne J. Gorod, and David H . Gans; for Former Rep. Tony Coelho et al. by Sanford Jay Rosen; for the Freedom From Religion Foundation by Rebecca S. Markert; for Freedom of Speech Scholars by Steven H. Shiffrin, pro se; for the General Synod of the United Church of Christ et al. by Douglas Hallward-Driemeier, K. Hollyn Hollman, Jennifer L. Hawks, Mary E . Kostel, and Donald C . Clark, Jr.; for GLBTQ Legal Advocates & Defenders et al. by Mary L . Bonauto , Gary D . Buseck, Shannon P . Minter, Christopher F. Stoll, Catherine R . Connors, and Nolan L . Reichl; for the Lambda Legal Defense and Education Fund, Inc., et al. by Jennifer C . Pizer; for the Lawyers' Committee for Civil Rights Under Law et al. by Ilana H . Eisenstein, Courtney Gilligan Saleski, Ethan H . Townsend, Paul Schmitt, Kristen Clarke , Jon Greenbaum, and Dariely Rodriguez; for Legal Scholars by Kyle C . Velte and Barbara J. Cox, both pro se; for the Main Street Alliance et al. by Charles C. Sipos, Nicola A. Menaldo , and Luke Rona; for the NAACP Legal Defense & Educational Fund, Inc., by John Paul Schnapper-Casteras, Coty Montag , Sherrilyn A. Ifll, Janai S. Nelson, and Samuel Spital; for the National League of Cities et al. by Lisa E. Soronen, D . Bruce La Pierre , and Brian C . Walsh; for the National LGBTQ Task Force et al. by Marc A. Hearron and Ruth N . Borenstein; for the National Women's Law Center et al. by Anna P . Engh, Fatima Goss Graves, Emily J . Martin, Gretchen Borchelt, Sunu Chandy , and Melissa Murray; for OutServe-SLDN, Inc., et al. by Michael E . Bern, Matthew Peters, Peter Perkowski, and Nima H . Mohebbi; for Public Accommodation Law Scholars by Catherine Weiss, Natalie J . Kraner , and Rey Lambert; for Scholars of Behavioral Science et al. by Adam W . Hofmann; for Scholars of the Constitutional Rights and Interests of Children by Catherine E . Smith, Lauren Fontana, and Barbara Bennett Woodhouse , all pro se; for the Service Employees International Union by Stacey Leyton, Rebecca Lee, Nicole G . Berner, and Claire Pres-tel; for Services and Advocacy for Gay, Lesbian, Bisexual and Transgender Elders et al. by Jonathan Jacob Nadler; for the Tanenbaum Center for Interreligious Understanding by Daniel Lawrence Greenberg , Robert J . Ward, Holly H . Weiss, and Jennifer M. Opheim; for Thirty-seven Busi-

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Opinion of the Court

ity 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.

nesses and Organizations by Jonathan B . Sallet; for the Transgender Law Center et al. by Clifford M. Sloan, Caroline S. Van Zile, Flor Bermudez, and Lynly S. Egyes; for the Transgender Legal Defense and Education Fund by John D . Winter, Jeffrey S. Ginsberg, and Sean P . Madden; for the Washington Lawyers' Committee for Civil Rights and Urban Affairs et al. by Matthew J . MacLean, Michael S. McNamara, Jennifer R. Clarke, and Aneel Chablani; for 15 Faith and Civil Rights Organizations by Jessica L. Ellsworth, Johnathan J. Smith, and Sirine Shebaya; for 211 Members of Congress by Peter T. Barbur; for Floyd Abrams et al. by Walter Dellinger, pro se , and Meaghan VerGow; for Ilan H. Meyer et al. by Stephen B . Kinnaird; and for Tobias B. Wolff by Mr . Wolff, pro se.

Briefs of amici curiae were filed for Cake Artists by Evan A. Young , Aaron M. Streett, and Benjamin A. Geslison; for the Council for Christian Colleges and Universities et al. by Gene C . Schaerr; for the Institute for Justice by Robert J . McNamara and Paul M. Sherman; and for David Boyle by Mr . Boyle, pro se. Page Proof Pending Publication

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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.

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 Page Proof Pending Publication

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Opinion of the Court

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 deleted). 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 mar-Page Proof Pending Publication

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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).

CADA 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 Page Proof Pending Publication

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“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 (or 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 September 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.

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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 sexual 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, Page Proof Pending Publication

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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 Page Proof Pending Publication

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Phillips sought review here, and this Court granted certiorari. 582 U. S. 929 (2017). He now renews his claims under the Free Speech and Free Exercise Clauses of the First Amendment.

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. 644 (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 flaiths.” Id., at 679–680. 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. Piggie Park Enterprises, Inc., 390 U. S. 400, 402, n. 5 (1968) (per curiam ); see also Hurley v. Irish-American Gay, Lesbian and Bisex-Page Proof Pending Publication

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ual 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 Page Proof Pending Publication

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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 involv-ing 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 Page Proof Pending Publication

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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.

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 Page Proof Pending Publication

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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 Page Proof Pending Publication

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Opinion of the Court

and neutral enforcement of Colorado's antidiscrimination law—a law that protects against 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 ,

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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 . . . be-Page Proof Pending Publication

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Opinion of the Court

cause 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. 218, 243–244 (2017) (opinion of Alito , J.). 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.

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 Page Proof Pending Publication

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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 justifca-tion” 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

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Kagan, J., concurring

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.

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 631. 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 634. I join the Court's opinion in full because I believe the Colorado Civil Rights Commission did not satisfy that obligation. I write Page Proof Pending Publication

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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 636, 639. 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 636; see post, at 669 (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 637. 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 637–638 (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.” Ante , at 638.

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 Page Proof Pending Publication

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Kagan, J., concurring

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.*

*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 646. 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 645, 648, 650. 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 626 (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 653. 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 631–632. 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 dis-

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Justice Gorsuch , with whom Justice Alito joins, concurring.

In Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872 (1990), this Court held that a neutral and generally applicable law will usually survive a constitutional free exercise challenge. Id., at 878–879. 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 flails to act neutrally toward the free exercise of religion, it tends to run into trouble. Then the government can prevail only if it sat-

criminates: 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. Page Proof Pending Publication

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isfes 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 flailed 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 636–638. 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.” Ante , at 638. 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 670–671, and n. 3 (Ginsburg, J., dissenting); ante, at 642–643, 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 disapprov-Page Proof Pending Publication

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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 cele-brating 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, regard- Page Proof Pending Publication

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CIVIL RIGHTS COMM'N Gorsuch, J., concurring

less of his or her sexual orientation. Id., at 166 (“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 671, n. 3 (Ginsburg, J., dissenting); ante, at 642–643, 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 salient 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

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The problem here is that the Commission flailed 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 Page Proof Pending Publication

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CIVIL RIGHTS COMM'N Gorsuch, J., concurring

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 flaiths. 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. Phillips 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

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Nor can any amount of after-the-fact maneuvering by our colleagues save the Commission. It is no answer, for exam-Page Proof Pending Publication

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ple, 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 672, and n. 5 (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 642–643, 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 fag,” 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 Page Proof Pending Publication

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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 expression,” 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 four 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. Page Proof Pending Publication

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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.

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Only one way forward now remains. Having flailed 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 639. Maybe in Page Proof Pending Publication

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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.” Ante , at 640. Mr. Phillips has conclusively proven a First Amendment violation and, after almost six years facing unlawful civil charges, he is entitled to judgment.

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 involv-ing three other bakers, for reasons that can only be explained by hostility toward Phillips' religion. See ante, at 644–650 (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 634–638. 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 624. 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 pre-made 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 Page Proof Pending Publication

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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.

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 631–632 (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).

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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 prohibited “ `any distinction, discrimination or restriction on account 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); alterations 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. Bar-nette, 319 U. S. 624, 632 (1943). Thus, a person's “conduct Page Proof Pending Publication

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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 reasonably 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 Schoenberg, 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 mes-

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sage as he sees ft. 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).

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 palette 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 Page Proof Pending Publication

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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, favor, and cutting of the cake). If an average person walked into a room and saw a white, multitiered 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 fa-vours 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

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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 fag, 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, ac-

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 668, n. 1 (opinion of Gins-burg , 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.

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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); Prune- Yard 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” stat-ing 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-Page Proof Pending Publication

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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 Page Proof Pending Publication

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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 af-firm in one breath that which they deny in the next.” Pa-cifc 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.

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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 Colorado'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] inferiority,' ” 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 undig-

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 Flags”—all of which this Page Proof Pending Publication

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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 Oberge-fell v. Hodges, 576 U. S. 644 (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 712 (Roberts, C. J., dissenting). 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. Ober-gefell 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 657 (majority opinion). 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

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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 734 (dissenting opinion). 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 741 (Alito , J., dissenting). If that freedom is to maintain its vitality, reasoning like the Colorado Court of Appeals' must be rejected.

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 631. “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 632. “[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 634. Gay persons may be spared from “indignities when they seek goods and services in an open market.” Ante, at 640. 1 I strongly dis-

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agree, 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 639. 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. Ibid. The Court also finds

ment). 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 657 (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 658–659 (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 659–660, 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) (per curiam ) (observing the Court's decades-long recognition of the symbolism of flags).

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On March 13, 2014—approximately three months after the ALJ ruled in favor of the same-sex couple, Craig and Mul-lins, 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.

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nate” 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 Colorado 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 Anti-Discrimination 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 637. See also ante, at 647–649 (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 Mul-

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

3 Justice Gorsuch argues that the situations “share all legally salient features.” Ante, at 646 (concurring opinion). But what critically differentiates 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 648 (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 669. 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 646–648 (Gor-such, J., concurring).

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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 637.

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 638. 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 624.5 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 distin-

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 whether speech is involved.” Ante, at 637. But recall that, while Jack requested cakes with particular text inscribed, Craig and Mul-lins 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 650–651 (Gor-such, J., concurring); it is between a cake with a particular design and one whose form was never even discussed.

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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 decision-making, of which the Commission was but one. See 370 P. 3d, at 277. 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 Page Proof Pending Publication

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CIVIL RIGHTS COMM'N Ginsburg, J., dissenting

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 deci-sionmaking body, the city council, see id., at 526–528.

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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. Page Proof Pending Publication

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