138 S.Ct. 1719 (2018)

MASTERPIECE CAKESHOP, LTD., et al., Petitioners

v.

COLORADO CIVIL RIGHTS COMMISSION, et al.

No. 16-111.

Argued December 5, 2017.

Decided June 4, 2018.

Supreme Court of United States.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS OF COLORADO.

Kristen K. Waggoner, Scottsdale, AZ, for Petitioners.

Noel J. Francisco, Solicitor General, for the United States as amicus curiae, by special leave

of the Court, supporting the petitioners.

Frederick R. Yarger, Denver, CO, for the State Respondent.

David D. Cole, Washington, DC, for the Private Respondents.

David A. Cortman, Rory T, Gray, Alliance Defending Freedom, Lawrenceville, GA, Nicolle H.

Martin, Lakewood, CO, Kristen K. Waggoner, Jeremy D. Tedesco, James A. Campbell,

Jonathan A. Scruggs, Alliance Defending Freedom, Scottsdale, AZ, for Petitioners.

Cynthia H. Coffman, Attorney General, Frederick R. Yarger, Solicitor General, Office of the

Colorado Attorney General, Denver, CO, Vincent E. Morscher, Deputy Attorney General,

Glenn E. Roper, Deputy Solicitor General, Stacy L. Worthington, Senior Assistant Attorney

General, Grant T. Sullivan, Assistant Solicitor General, for Respondent Colorado Civil Rights

Commission.

Mark Silverstein, Sara R. Neel, American Civil Liberties Union Foundation of Colorado, Paula

Greisen, King & Greisen, LLC, Denver, CO, Ria Tabacco Mar, James D. Esseks, Leslie

Cooper, Rachel Wainer Apter, Louise Melling, Rose A. *1723 Saxe, Lee Rowland, American

Civil Liberties Union Foundation, New York, NY, David D. Cole, Amanda W. Shanor, Daniel

Mach, American Civil Liberties Union Foundation, Washington, DC, for Respondents Charlie

Craig and David Mullins.

1723

*1720 Syllabus[*]1720

Masterpiece Cakeshop, Ltd., is a Colorado bakery owned and operated by Jack Phillips, an

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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 (ALJ),

who ruled in the couple’s favor. In so doing, the ALJ 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.

1727-1732.

(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 *1721

objections to gay marriage are protected views and in some instances protected forms of

expression. See Obergefell v. Hodges, 576 U.S. ___, ___, 135 S.Ct. 2584, 2594, 192

L.Ed.2d 609. 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

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, 133 S.Ct. 2675,

186 L.Ed.2d 808, 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 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. 1727-1729.

1721

(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

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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. 1728-1731.

(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

exercise, cannot impose regulations that are hostile to the religious beliefs of affected *1722

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, 113 S.Ct. 2217, 124 L.Ed.2d 472. 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, 113 S.Ct. 2217. 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, 113 S.Ct. 2217, 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, 113 S.Ct. 2217, 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. 1730-1732.

1722

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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. GORSUCH, J., filed a concurring opinion, in which ALITO, J., joined.

THOMAS, J., filed an opinion concurring in part and concurring in the judgment, in which

GORSUCH, J., joined. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J.,

joined.

Justice KENNEDY delivered the opinion of the Court.

In 2012 a same-sex couple visited Masterpiece Cakeshop, a bakery in Colorado, to make

inquiries about ordering a cake for their wedding reception. The shop’s owner told the couple

that he would not create a cake for their wedding because of his religious opposition to

same-sex marriages — marriages the State of Colorado itself did not recognize at that time.

The couple filed a charge with the Colorado Civil Rights Commission alleging discrimination

on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act.

The Commission determined that the shop’s actions violated the Act and ruled in the couple’s

favor. The Colorado state courts affirmed the ruling and its enforcement order, and this Court

now must decide whether the Commission’s order violated the Constitution.

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

The first is the authority of a State and its governmental entities to protect the rights and

dignity of gay persons who are, or wish to be, married but who face discrimination when they

seek goods or services. The second is the right of all persons to exercise fundamental

freedoms under the First Amendment, as applied to the States through the Fourteenth

Amendment.

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

The free speech aspect of this case is difficult, for few persons who have seen a beautiful

wedding cake might have thought of its creation as an exercise of protected speech. This is

an instructive example, however, of the proposition that the application of constitutional

freedoms in new contexts can deepen our understanding of their meaning.

One of the difficulties in this case is that the parties disagree as to the extent of the baker’s

refusal to provide service. If a baker refused to design a special cake with words or images

celebrating the marriage — for instance, a cake showing words with religious meaning — that

might be different from a refusal to sell any cake at all. In defining whether a baker’s creation

can be protected, these details might make a difference.

The same difficulties arise in determining whether a baker has a valid free exercise claim. A

baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal

to put certain religious words or decorations on the cake, or even a refusal to sell a cake that

has been baked for the public generally but includes certain religious words or symbols on it

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are just three examples of possibilities that seem all but endless.

Whatever the confluence of speech and free exercise principles might be in some cases, the

Colorado Civil Rights Commission’s consideration of this case was inconsistent with the

State’s obligation of religious neutrality. The reason and motive for the baker’s refusal were

based on his sincere religious beliefs and convictions. The Court’s precedents make clear

that the baker, in his capacity as the owner of a *1724 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.

1724

Given all these considerations, it is proper to hold that whatever the outcome of some future

controversy involving facts similar to these, the Commission’s actions here violated the Free

Exercise Clause; and its order must be set aside.

I

A

Masterpiece Cakeshop, Ltd., is a bakery in Lakewood, Colorado, a suburb of Denver. The

shop offers a variety of baked goods, ranging from everyday cookies and brownies to

elaborate custom-designed cakes for birthday parties, weddings, and other events.

Jack Phillips is an expert baker who has owned and operated the shop for 24 years. Phillips

is a devout Christian. He has explained that his “main goal in life is to be obedient to” Jesus

Christ and Christ’s “teachings in all aspects of his life.” App. 148. And he seeks to “honor God

through his work at Masterpiece Cakeshop.” Ibid. One of Phillips’ religious beliefs is that

“God’s intention for marriage from the beginning of history is that it is and should be the union

of one man and one woman.” Id., at 149. To Phillips, creating a wedding cake for a same-sex

wedding would be equivalent to participating in a celebration that is contrary to his own most

deeply held beliefs.

Phillips met Charlie Craig and Dave Mullins when they entered his shop in the summer of

2012. Craig and Mullins were planning to marry. At that time, Colorado did not recognize

same-sex marriages, so the couple planned to wed legally in Massachusetts and afterwards

to host a reception for their family and friends in Denver. To prepare for their celebration,

Craig and Mullins visited the shop and told Phillips that they were interested in ordering a

cake for “our wedding.” Id., at 152 (emphasis deleted). They did not mention the design of

the cake they envisioned.

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Phillips informed the couple that he does not “create” wedding cakes for same-sex weddings.

Ibid. He explained, “I’ll make your birthday cakes, shower cakes, sell you cookies and

brownies, I just don’t make cakes for same sex weddings.” Ibid. The couple left the shop

without further discussion.

The following day, Craig’s mother, who had accompanied the couple to the cakeshop and

been present for their interaction with Phillips, telephoned to ask Phillips why he had declined

to serve her son. Phillips explained that he does not create wedding cakes for same-sex

weddings because of his religious opposition to same-sex marriage, and also because

Colorado (at that time) did not recognize same-sex marriages. Id., at 153. He later explained

his belief that “to create a wedding cake for an event that celebrates something that directly

goes against the teachings of the Bible, would have been a personal endorsement and

participation in the ceremony and relationship that they were entering into.” Ibid. (emphasis

deleted).

B

For most of its history, Colorado has prohibited discrimination in places of public *1725

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.

1725

Today, the Colorado Anti-Discrimination Act (CADA) carries forward the state’s tradition of

prohibiting discrimination in places of public accommodation. Amended in 2007 and 2008 to

prohibit discrimination on the basis of sexual orientation as well as other protected

characteristics, CADA in relevant part provides as follows:

“It is a discriminatory practice and unlawful for a person, directly or indirectly,

to refuse, withhold from, or deny to an individual or a group, because of

disability, race, creed, color, sex, sexual orientation, marital status, national

origin, or ancestry, the full and equal enjoyment of the goods, services,

facilities, privileges, advantages, or accommodations of a place of public

accommodation.” Colo. Rev. Stat. § 24-34-601(2)(a) (2017).

The Act defines “public accommodation” broadly to include any “place of business engaged

in any sales to the public and any place offering services … to the public,” but excludes “a

church, synagogue, mosque, or other place that is principally used for religious purposes.” §

24-34-601(1).

CADA establishes an administrative system for the resolution of discrimination claims.

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Complaints of discrimination in violation of CADA are addressed in the first instance by the

Colorado Civil Rights Division. The Division investigates each claim; and if it finds probable

cause that CADA has been violated, it will refer the matter to the Colorado Civil Rights

Commission. The Commission, in turn, decides whether to initiate a formal hearing before a

state Administrative Law Judge (ALJ), who will hear evidence and argument before issuing a

written decision. See §§ 24-34-306, 24-4-105(14). The decision of the ALJ may be appealed

to the full Commission, a seven-member appointed body. The Commission holds a public

hearing and deliberative session before voting on the case. If the Commission determines

that the evidence proves a CADA violation, it may impose remedial measures as provided by

statute. See § 24-34-306(9). Available remedies include, among other things, orders to

cease-and-desist a discriminatory policy, to file regular compliance reports with the

Commission, and “to take affirmative action, including the posting of notices setting forth the

substantive rights of the public.” § 24-34-605. Colorado law does not permit the Commission

to assess money damages or fines. §§ 24-34-306(9), 24-34-605.

C

Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop and Phillips

in 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.

The Civil Rights Division opened an investigation. The investigator found that “on multiple

occasions,” Phillips “turned away potential customers on the basis of their sexual orientation,

stating that he *1726 could not create a cake for a same-sex wedding ceremony or reception”

because his religious beliefs prohibited it and because the potential customers “were doing

something illegal” at that time. Id., at 76. The investigation found that Phillips had declined to

sell custom wedding cakes to about six other same-sex couples on this basis. Id., at 72. The

investigator also recounted that, according to affidavits submitted by Craig and Mullins,

Phillips’ shop had refused to sell cupcakes to a lesbian couple for their commitment

celebration because the shop “had a policy of not selling baked goods to same-sex couples

for this type of event.” Id., at 73. Based on these findings, the Division found probable cause

that Phillips violated CADA and referred the case to the Civil Rights Commission. Id., at 69.

1726

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

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Pet. for Cert. 68a-72a.

Phillips raised two constitutional claims before the ALJ. He first asserted that applying CADA

in a way that would require him to create a cake for a same-sex wedding would violate his

First Amendment right to free speech by compelling him to exercise his artistic talents to

express a message with which he disagreed. The ALJ rejected the contention that preparing

a wedding cake is a form of protected speech and did not agree that creating Craig and

Mullins’ cake would force Phillips to adhere to “an ideological point of view.” Id., at 75a.

Applying CADA to the facts at hand, in the ALJ’s view, did not interfere with Phillips’ freedom

of speech.

Phillips also contended that requiring him to create cakes for same-sex weddings would

violate his right to the free exercise of religion, also protected by the First Amendment. Citing

this Court’s precedent in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494

U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (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, 110 S.Ct. 1595; 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 *1727 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,

110 S.Ct. 1595, the court stated that the Free Exercise Clause “does not relieve an individual

of the obligation to comply with a valid and neutral law of general applicability” on the ground

that following the law would interfere with religious practice or belief. 370 P.3d, at 289. The

court concluded that requiring Phillips to comply with the statute did not violate his free

exercise rights. The Colorado Supreme Court declined to hear the case.

1727

Phillips sought review here, and this Court granted certiorari. 582 U.S. ___, 137 S.Ct. 2290,

198 L.Ed.2d 723 (2017). He now renews his claims under the Free Speech and Free

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Exercise Clauses of the First Amendment.

II

A

Our society has come to the recognition that gay persons and gay couples cannot be treated

as social outcasts or as inferior in dignity and worth. For that reason the laws and the

Constitution can, and in some instances must, protect them in the exercise of their civil rights.

The exercise of their freedom on terms equal to others must be given great weight and

respect by the courts. At the same time, the religious and philosophical objections to gay

marriage are protected views and in some instances protected forms of expression. As this

Court observed in Obergefell v. Hodges, 576 U.S. ___, 135 S.Ct. 2584, 192 L.Ed.2d 609

(2015), “[t]he First Amendment ensures that religious organizations and persons are given

proper protection as they seek to teach the principles that are so fulfilling and so central to

their lives and faiths.” Id., at ___, 135 S.Ct., at 2607. 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,

88 S.Ct. 964, 19 L.Ed.2d 1263 (1968) (per curiam); see also Hurley v. Irish-American Gay,

Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 572, 115 S.Ct. 2338, 132 L.Ed.2d

487 (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.

*1728 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

1728

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case under this Court’s precedents that this would be a denial of goods and services that

went beyond any protected rights of a baker who offers goods and services to the general

public and is subject to a neutrally applied and generally applicable public accommodations

law. See Tr. of Oral Arg. 4-7, 10.

Phillips claims, however, that a narrower issue is presented. He argues that he had to use his

artistic skills to make an expressive statement, a wedding endorsement in his own voice and

of his own creation. As Phillips would see the case, this contention has a significant First

Amendment speech component and implicates his deep and sincere religious beliefs. In this

context the baker likely found it difficult to find a line where the customers’ rights to goods and

services became a demand for him to exercise the right of his own personal expression for

their message, a message he could not express in a way consistent with his religious beliefs.

Phillips’ dilemma was particularly understandable given the background of legal principles

and administration of the law in Colorado at that time. His decision and his actions leading to

the refusal of service all occurred in the year 2012. At that point, Colorado did not recognize

the validity of gay marriages performed in its own State. See Colo. Const., Art. II, § 31 (2012);

370 P.3d, at 277. At the time of the events in question, this Court had not issued its decisions

either in United States v. Windsor, 570 U.S. 744, 133 S.Ct. 2675, 186 L.Ed.2d 808 (2013), or

Obergefell. Since the State itself did not allow those marriages to be performed in Colorado,

there is some force to the argument that the baker was not unreasonable in deeming it lawful

to decline to take an action that he understood to be an expression of support for their validity

when that expression was contrary to his sincerely held religious beliefs, at least insofar as

his refusal was limited to refusing to create and express a message in support of gay

marriage, even one planned to take place in another State.

At the time, state law also afforded storekeepers some latitude to decline to create specific

messages the storekeeper considered offensive. Indeed, while enforcement proceedings

against Phillips were ongoing, the Colorado Civil Rights Division itself endorsed this

proposition in cases involving other bakers’ creation of cakes, concluding on at least three

occasions that a baker acted lawfully in declining to create cakes with decorations that

demeaned gay persons or gay marriages. See Jack v. Gateaux, Ltd., Charge No.

P20140071X (Mar. 24, 2015); Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X

(Mar. 24, 2015); Jack v. Azucar Bakery, Charge No. P20140069X (Mar. 24, 2015).

There were, to be sure, responses to these arguments that the State could make when it

contended for a different result in seeking the enforcement of its generally applicable state

regulations of businesses that serve the public. And any decision in favor of the baker would

have to be sufficiently constrained, lest all purveyors of goods and services who object to gay

marriages for moral and religious reasons in *1729 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.

1729

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B

The neutral and respectful consideration to which Phillips was entitled was compromised

here, however. The Civil Rights Commission’s treatment of his case has some elements of a

clear and impermissible hostility toward the sincere religious beliefs that motivated his

objection.

That hostility surfaced at the Commission’s formal, public hearings, as shown by the record.

On May 30, 2014, the seven-member Commission convened publicly to consider Phillips’

case. At several points during its meeting, commissioners endorsed the view that religious

beliefs cannot legitimately be carried into the public sphere or commercial domain, implying

that religious beliefs and persons are less than fully welcome in Colorado’s business

community. One commissioner suggested that Phillips can believe “what he wants to

believe,” but cannot act on his religious beliefs “if he decides to do business in the state.” Tr.

23. A few moments later, the commissioner restated the same position: “[I]f a businessman

wants to do business in the state and he’s got an issue with the — the law’s impacting his

personal belief system, he needs to look at being able to compromise.” Id., at 30. Standing

alone, these statements are susceptible of different interpretations. On the one hand, they

might mean simply that a business cannot refuse to provide services based on sexual

orientation, regardless of the proprietor’s personal views. On the other hand, they might be

seen as inappropriate and dismissive comments showing lack of due consideration for

Phillips’ free exercise rights and the dilemma he faced. In view of the comments that followed,

the latter seems the more likely.

On July 25, 2014, the Commission met again. This meeting, too, was conducted in public and

on the record. On this occasion another commissioner made specific reference to the

previous meeting’s discussion but said far more to disparage Phillips’ beliefs. The

commissioner stated:

“I would also like to reiterate what we said in the hearing or the last meeting.

Freedom of religion and religion has been used to justify all kinds of

discrimination throughout history, whether it be slavery, whether it be the

holocaust, whether it be — I mean, we — we can list hundreds of situations

where freedom of religion has been used to justify discrimination. And to me it

is one of the most despicable pieces of rhetoric that people can use to — to

use their religion to hurt others.” Tr. 11-12.

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can

use” is to disparage his religion in at least two distinct ways: by describing it as despicable,

and also by characterizing it as merely rhetorical — something insubstantial and even

insincere. The commissioner even went so far as to compare Phillips’ invocation of his

sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is

inappropriate for a Commission charged with the solemn responsibility of fair and neutral

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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 *1730 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, 113 S.Ct. 2217, 124 L.Ed.2d

472 (1993); id., at 558, 113 S.Ct. 2217 (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.

1730

Another indication of hostility is the difference in treatment between Phillips’ case and the

cases of other bakers who objected to a requested cake on the basis of conscience and

prevailed before the Commission.

As noted above, on at least three other occasions the Civil Rights Division considered the

refusal of bakers to create cakes with images that conveyed disapproval of same-sex

marriage, along with religious text. Each time, the Division found that the baker acted lawfully

in refusing service. It made these determinations because, in the words of the Division, the

requested cake included “wording and images [the baker] deemed derogatory,” Jack v.

Gateaux, Ltd., Charge No. P20140071X, at 4; featured “language and images [the baker]

deemed hateful,” Jack v. Le Bakery Sensual, Inc., Charge No. P20140070X, at 4; or

displayed a message the baker “deemed as discriminatory, Jack v. Azucar Bakery, Charge

No. P20140069X, at 4.

The treatment of the conscience-based objections at issue in these three cases contrasts

with the Commission’s treatment of Phillips’ objection. The Commission ruled against Phillips

in part on the theory that any message the requested wedding cake would carry would be

attributed to the customer, not to the baker. Yet the Division did not address this point in any

of the other cases with respect to the cakes depicting anti-gay marriage symbolism.

Additionally, the Division found no violation of CADA in the other cases in part because each

bakery was willing to sell other products, including those depicting Christian themes, to the

prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday

cakes, shower cakes, [and] cookies and brownies,” App. 152, to gay and lesbian customers

as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be

interpreted as being inconsistent as to the question of whether speech is involved, quite

apart from whether the cases should ultimately be distinguished. In short, the Commission’s

consideration of Phillips’ religious objection did not accord with its treatment of these other

objections.

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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 *1731 requested cakes. 370 P.3d, at 282, n. 8. In those cases, the court continued, there

was no impermissible discrimination because “the Division found that the bakeries …

refuse[d] the patron’s request … because of the offensive nature of the requested message.”

Ibid.

1731

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, 63 S.Ct. 1178, 87 L.Ed. 1628 (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. ___, ___-___, 137 S.Ct. 1744,

1762-1764, 198 L.Ed.2d 366 (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.

C

For the reasons just described, the Commission’s treatment of Phillips’ case violated the

State’s duty under the First Amendment not to base laws or regulations on hostility to a

religion or religious viewpoint.

In Church of Lukumi Babalu Aye, supra, the Court made clear that the government, if it is to

respect the Constitution’s guarantee of free exercise, cannot impose regulations that are

hostile to the religious beliefs of affected citizens and cannot act in a manner that passes

judgment upon or presupposes the illegitimacy of religious beliefs and practices. The Free

Exercise Clause bars even “subtle departures from neutrality” on matters of religion. Id., at

534, 113 S.Ct. 2217. Here, that means the Commission was obliged under the Free Exercise

Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs. The

Constitution “commits government itself to religious tolerance, and upon even slight suspicion

that proposals for state intervention stem from animosity to religion or distrust of its practices,

all officials must pause to remember their own high duty to the Constitution and to the rights it

secures.” Id., at 547, 113 S.Ct. 2217.

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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,

113 S.Ct. 2217. 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, 113 S.Ct. 2217, of adjudicating

Phillips’ religious objection based on a negative normative “evaluation of the particular

justification” for his objection and the religious grounds for it. Id., at 537, 113 S.Ct. 2217. 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.

*1732 While the issues here are difficult to resolve, it must be concluded that the State’s

interest could have been weighed against Phillips’ sincere religious objections in a way

consistent with the requisite religious neutrality that must be strictly observed. The official

expressions of hostility to religion in some of the commissioners’ comments — comments that

were not disavowed at the Commission or by the State at any point in the proceedings that

led to affirmance of the order — were inconsistent with what the Free Exercise Clause

requires. The Commission’s disparate consideration of Phillips’ case compared to the cases

of the other bakers suggests the same. For these reasons, the order must be set aside.

1732

III

The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our

laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral

decisionmaker who would give full and fair consideration to his religious objection as he

sought to assert it in all of the circumstances in which this case was presented, considered,

and decided. In this case the adjudication concerned a context that may well be different

going forward in the respects noted above. However later cases raising these or similar

concerns are resolved in the future, for these reasons the rulings of the Commission and of

the state court that enforced the Commission’s order must be invalidated.

The outcome of cases like this in other circumstances must await further elaboration in the

courts, all in the context of recognizing that these disputes must be resolved with tolerance,

without undue disrespect to sincere religious beliefs, and without subjecting gay persons to

indignities when they seek goods and services in an open market.

The judgment of the Colorado Court of Appeals is reversed.

It is so ordered.

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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 1727. 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 1729. I join the Court’s opinion in full because I believe the Colorado

Civil Rights Commission did not satisfy that obligation. I write separately to elaborate on one

of the bases for the Court’s holding.

The Court partly relies on the “disparate consideration of Phillips’ case compared to the

cases of [three] other bakers” who “objected to a requested cake on the basis of

conscience.” Ante, at 1730, 1732. 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 1730; see post, at

1749 (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 1730. And the Court takes

especial *1733 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 1731 (internal quotation marks omitted). As the Court states, a “principled

rationale for the difference in treatment” cannot be “based on the government’s own

assessment of offensiveness.” Ibid.

1733

What makes the state agencies’ consideration yet more disquieting is that a proper basis for

distinguishing the cases was available — in fact, was obvious. The Colorado Anti-

Discrimination Act (CADA) makes it unlawful for a place of public accommodation to deny “the

full and equal enjoyment” of goods and services to individuals based on certain

characteristics, including sexual orientation and creed. Colo. Rev. Stat. § 24-34-601(2)(a)

(2017). The three bakers in the Jack cases did not violate that law. Jack requested them to

make a cake (one denigrating gay people and same-sex marriage) that they would not have

made for any customer. In refusing that request, the bakers did not single out Jack because

of his religion, but instead treated him in the same way they would have treated anyone else

— just as CADA requires. By contrast, the same-sex couple in this case requested a wedding

cake that Phillips would have made for an opposite-sex couple. In refusing that request,

Phillips contravened CADA’s demand that customers receive “the full and equal enjoyment” of

public accommodations irrespective of their sexual orientation. Ibid. The different outcomes in

the Jack cases and the Phillips case could thus have been justified by a plain reading and

neutral application of Colorado law — untainted by any bias against a religious belief.[*]

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I read the Court’s opinion as fully consistent with that view. The Court limits its analysis to the

reasoning of the state agencies (and Court of Appeals) — “quite *1734 apart from whether

the [Phillips and Jack] cases should ultimately be distinguished.” Ante, at 1727. And the

Court itself recognizes the principle that would properly account for a difference in result

between those cases. Colorado law, the Court says, “can protect gay persons, just as it can

protect other classes of individuals, in acquiring whatever products and services they choose

on the same terms and conditions as are offered to other members of the public.” Ante, at

1728. For that reason, Colorado can treat a baker who discriminates based on sexual

orientation differently from a baker who does not discriminate on that or any other prohibited

ground. But only, as the Court rightly says, if the State’s decisions are not infected by

religious hostility or bias. I accordingly concur.

1734

Justice GORSUCH, with whom Justice ALITO joins, concurring.

In Employment Div., Dept. of Human Resources of Ore. v. Smith, this Court held that a

neutral and generally applicable law will usually survive a constitutional free exercise

challenge. 494 U.S. 872, 878-879, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). Smith remains

controversial in many quarters. Compare McConnell, The Origins and Historical

Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990), with Hamburger,

A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L.

Rev. 915 (1992). But we know this with certainty: when the government fails to act neutrally

toward the free exercise of religion, it tends to run into trouble. Then the government can

prevail only if it satisfies strict scrutiny, showing that its restrictions on religion both serve a

compelling interest and are narrowly tailored. Church of Lukumi Babalu Aye, Inc. v. Hialeah,

508 U.S. 520, 546, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993).

Today’s decision respects these principles. As the Court explains, the Colorado Civil Rights

Commission failed to act neutrally toward Jack Phillips’s religious faith. Maybe most notably,

the Commission allowed three other bakers to refuse a customer’s request that would have

required them to violate their secular commitments. Yet it denied the same accommodation to

Mr. Phillips when he refused a customer’s request that would have required him to violate his

religious beliefs. Ante, at 1729-1731. As the Court also explains, the only reason the

Commission seemed to supply for its discrimination was that it found Mr. Phillips’s religious

beliefs “offensive.” Ibid. That kind of judgmental dismissal of a sincerely held religious belief

is, of course, antithetical to the First Amendment and cannot begin to satisfy strict scrutiny.

The Constitution protects not just popular religious exercises from the condemnation of civil

authorities. It protects them all. Because the Court documents each of these points carefully

and thoroughly, I am pleased to join its opinion in full.

The only wrinkle is this. In the face of so much evidence suggesting hostility toward Mr.

Phillips’s sincerely held religious beliefs, two of our colleagues have written separately to

suggest that the Commission acted neutrally toward his faith when it treated him differently

from the other bakers — or that it could have easily done so consistent with the First

Amendment. See post, at 1749-1750, and n. 4 (GINSBURG, J., dissenting); ante, at

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1732-1734, 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 *1735 and asked them to prepare cakes with messages

disapproving same-sex marriage on religious grounds. App. 233, 243, 252. All three bakers

refused Mr. Jack’s request, stating that they found his request offensive to their secular

convictions. Id., at 231, 241, 250. Mr. Jack responded by filing complaints with the Colorado

Civil Rights Division. Id., at 230, 240, 249. He pointed to Colorado’s Anti-Discrimination Act,

which prohibits discrimination against customers in public accommodations because of

religious creed, sexual orientation, or certain other traits. See ibid.; Colo. Rev. Stat. §

24-34-601(2)(a) (2017). Mr. Jack argued that the cakes he sought reflected his religious

beliefs and that the bakers could not refuse to make them just because they happened to

disagree with his beliefs. App. 231, 241, 250. But the Division declined to find a violation,

reasoning that the bakers didn’t deny Mr. Jack service because of his religious faith but

because the cakes he sought were offensive to their own moral convictions. Id., at 237, 247,

255-256. As proof, the Division pointed to the fact that the bakers said they treated Mr. Jack

as they would have anyone who requested a cake with similar messages, regardless of their

religion. Id., at 230-231, 240, 249. The Division pointed, as well, to the fact that the bakers

said they were happy to provide religious persons with other cakes expressing other ideas.

Id., at 237, 247, 257. Mr. Jack appealed to the Colorado Civil Rights Commission, but the

Commission summarily denied relief. App. to Pet. for Cert. 326a-331a.

1735

Next, take the undisputed facts of Mr. Phillips’s case. Charlie Craig and Dave Mullins

approached Mr. Phillips about creating a cake to celebrate their wedding. App. 168. Mr.

Phillips explained that he could not prepare a cake celebrating a same-sex wedding

consistent with his religious faith. Id., at 168-169. But Mr. Phillips offered to make other baked

goods for the couple, including cakes celebrating other occasions. Ibid. Later, Mr. Phillips

testified without contradiction that he would have refused to create a cake celebrating a

same-sex marriage for any customer, regardless of his or her sexual orientation. Id., at

166-167 (“I will not design and create wedding cakes for a same-sex wedding regardless of

the sexual orientation of the customer”). And the record reveals that Mr. Phillips apparently

refused just such a request from Mr. Craig’s mother. Id., at 38-40, 169. (Any suggestion that

Mr. Phillips was willing to make a cake celebrating a same-sex marriage for a heterosexual

customer or was not willing to sell other products to a homosexual customer, then, would

simply mistake the undisputed factual record. See post, at 1749, n. 2 (GINSBURG, J.,

dissenting); ante, at 1732-1734, 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

1736

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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). *1736 So, for

example, the bakers in the first case would have refused to sell a cake denigrating same-sex

marriage to an atheist customer, just as the baker in the second case would have refused to

sell a cake celebrating same-sex marriage to a heterosexual customer. And the bakers in the

first case were generally happy to sell to persons of faith, just as the baker in the second

case was generally happy to sell to gay persons. In both cases, it was the kind of cake, not

the kind of customer, that mattered to the bakers.

The distinction between intended and knowingly accepted effects is familiar in life and law.

Often the purposeful pursuit of worthy commitments requires us to accept unwanted but

entirely foreseeable side effects: so, for example, choosing to spend time with family means

the foreseeable loss of time for charitable work, just as opting for more time in the office

means knowingly forgoing time at home with loved ones. The law, too, sometimes

distinguishes between intended and foreseeable effects. See, e.g., ALI, Model Penal Code

§§ 1.13, 2.02(2)(a)(i) (1985); 1 W. LaFave, Substantive Criminal Law § 5.2(b), pp. 460-463

(3d ed. 2018). Other times, of course, the law proceeds differently, either conflating intent

and knowledge or presuming intent as a matter of law from a showing of knowledge. See,

e.g., Restatement (Second) of Torts § 8A (1965); Radio Officers v. NLRB, 347 U.S. 17, 45,

74 S.Ct. 323, 98 L.Ed. 455 (1954).

The problem here is that the Commission failed to act neutrally by applying a consistent legal

rule. In Mr. Jack’s case, the Commission chose to distinguish carefully between intended and

knowingly accepted effects. Even though the bakers knowingly denied service to someone in

a protected class, the Commission found no violation because the bakers only intended to

distance themselves from “the offensive nature of the requested message.” Craig v.

Masterpiece Cakeshop, Inc., 370 P.3d 272, 282, n. 8 (Colo.App.2015); App. 237, 247, 256;

App. to Pet. for Cert. 326a-331a; see also Brief for Respondent Colorado Civil Rights

Commission 52 (“Businesses are entitled to reject orders for any number of reasons,

including because they deem a particular product requested by a customer to be `offensive'”).

Yet, in Mr. Phillips’s case, the Commission dismissed this very same argument as resting on a

“distinction without a difference.” App. to Pet. for Cert. 69a. It concluded instead that an

“intent to disfavor” a protected class of persons should be “readily … presumed” from the

knowing failure to serve someone who belongs to that class. Id., at 70a. In its judgment, Mr.

Phillips’s intentions were “inextricably tied to the sexual orientation of the parties involved”

and essentially “irrational.” Ibid.

Nothing in the Commission’s opinions suggests any neutral principle to reconcile these

holdings. If Mr. Phillips’s objection is “inextricably tied” to a protected class, then the bakers’

1737

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objection in Mr. Jack’s case must be “inextricably tied” to one as well. For just as cakes

celebrating same-sex weddings are (usually) requested by persons of a particular sexual

orientation, so too are cakes expressing religious opposition to same-sex weddings (usually)

requested by persons of particular religious faiths. In both cases the bakers’ objection would

(usually) result in turning down customers who bear a protected characteristic. In the end, the

Commission’s decisions simply reduce to this: it presumed that Mr. Phillip harbored an intent

to discriminate against a protected class in light of the foreseeable effects of his conduct, but

it declined to presume the same intent in Mr. Jack’s case even though the effects of the

bakers’ conduct were just as foreseeable. Underscoring the double standard, a state

appellate court said that “no *1737 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, 113 S.Ct. 2217. That is anything but the neutral treatment of religion.

The real explanation for the Commission’s discrimination soon comes clear, too — and it

does anything but help its cause. This isn’t a case where the Commission self-consciously

announced a change in its legal rule in all public accommodation cases. Nor is this a case

where the Commission offered some persuasive reason for its discrimination that might

survive strict scrutiny. Instead, as the Court explains, it appears the Commission wished to

condemn Mr. Phillips for expressing just the kind of “irrational” or “offensive … message” that

the bakers in the first case refused to endorse. Ante, at 1730-1731. Many may agree with the

Commission and consider Mr. Phillips’s religious beliefs irrational or offensive. Some may

believe he misinterprets the teachings of his faith. And, to be sure, this Court has held same-

sex marriage a matter of constitutional right and various States have enacted laws that

preclude discrimination on the basis of sexual orientation. But it is also true that no

bureaucratic judgment condemning a sincerely held religious belief as “irrational” or

“offensive” will ever survive strict scrutiny under the First Amendment. In this country, the

place of secular officials isn’t to sit in judgment of religious beliefs, but only to protect their

free exercise. Just as it is the “proudest boast of our free speech jurisprudence” that we

protect speech that we hate, it must be the proudest boast of our free exercise jurisprudence

that we protect religious beliefs that we find offensive. See Matal v. Tam, 582 U.S. ___, ___,

137 S.Ct. 1744, 1764, 198 L.Ed.2d 366 (2017) (plurality opinion) (citing United States v.

Schwimmer, 279 U.S. 644, 655, 49 S.Ct. 448, 73 L.Ed. 889 (1929) (Holmes, J., dissenting)).

Popular religious views are easy enough to defend. It is in protecting unpopular religious

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beliefs that we prove this country’s commitment to serving as a refuge for religious freedom.

See Church of Lukumi Babalu Aye, supra, at 547, 113 S.Ct. 2217; Thomas v. Review Bd. of

Indiana Employment Security Div., 450 U.S. 707, 715-716, 101 S.Ct. 1425, 67 L.Ed.2d 624

(1981); Wisconsin v. Yoder, 406 U.S. 205, 223-224, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972);

Cantwell v. Connecticut, 310 U.S. 296, 308-310, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

Nor can any amount of after-the-fact maneuvering by our colleagues save the Commission. It

is no answer, for example, to observe that Mr. Jack requested a cake with text on it while Mr.

Craig and Mr. Mullins sought a cake celebrating their wedding without discussing its

decoration, and then suggest this distinction makes all the difference. See post, at

1749-1750, and n. 4 (GINSBURG, J., dissenting). It is no answer either simply to slide up a

level of generality to redescribe Mr. Phillips’s case as involving only a wedding cake *1738

like any other, so the fact that Mr. Phillips would make one for some means he must make

them for all. See ante, at 1732-1734, and n. (KAGAN, J., concurring). These arguments, too,

fail to afford Mr. Phillips’s faith neutral respect.

1738

Take the first suggestion first. To suggest that cakes with words convey a message but cakes

without words do not — all in order to excuse the bakers in Mr. Jack’s case while penalizing

Mr. Phillips — is irrational. Not even the Commission or court of appeals purported to rely on

that distinction. Imagine Mr. Jack asked only for a cake with a symbolic expression against

same-sex marriage rather than a cake bearing words conveying the same idea. Surely the

Commission would have approved the bakers’ intentional wish to avoid participating in that

message too. Nor can anyone reasonably doubt that a wedding cake without words conveys

a message. Words or not and whatever the exact design, it celebrates a wedding, and if the

wedding cake is made for a same-sex couple it celebrates a same-sex wedding. See 370

P.3d, at 276 (stating that Mr. Craig and Mr. Mullins “requested that Phillips design and create

a cake to celebrate their same-sex wedding”) (emphasis added). Like “an emblem or flag,” a

cake for a same-sex wedding is a symbol that serves as “a short cut from mind to mind,”

signifying approval of a specific “system, idea, [or] institution.” West Virginia Bd. of Ed. v.

Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). It is precisely that

approval that Mr. Phillips intended to withhold in keeping with his religious faith. The

Commission denied Mr. Phillips that choice, even as it afforded the bakers in Mr. Jack’s case

the choice to refuse to advance a message they deemed offensive to their secular

commitments. That is not neutral.

Nor would it be proper for this or any court to suggest that a person must be forced to write

words rather than create a symbol before his religious faith is implicated. Civil authorities,

whether “high or petty,” bear no license to declare what is or should be “orthodox” when it

comes to religious beliefs, id., at 642, 63 S.Ct. 1178, or whether an adherent has “correctly

perceived” the commands of his religion, Thomas, supra, at 716, 101 S.Ct. 1425. 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, 115 S.Ct. 2338. 132 L.Ed.2d 487 (1995) (“[T]he Constitution

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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

flour and eggs; at its most specific level, it was a cake celebrating the same-sex wedding of

Mr. Craig and Mr. Mullins. We are told here, however, to apply a sort of Goldilocks rule:

describing the cake by its ingredients is too general; understanding it as celebrating a same-

sex wedding is too specific; but regarding it as a generic wedding cake is just right. The

problem is, the Commission didn’t play with the level of generality in Mr. Jack’s case in this

way. It didn’t declare, for example, that because the cakes Mr. Jack requested were just

cakes about weddings generally, and all such cakes were the same, the bakers had to

produce them. Instead, the Commission accepted the bakers’ view that the specific cakes Mr.

Jack requested conveyed a message offensive to their convictions and allowed *1739 them

to refuse service. Having done that there, it must do the same here.

1739

Any other conclusion would invite civil authorities to gerrymander their inquiries based on the

parties they prefer. Why calibrate the level of generality in Mr. Phillips’s case at “wedding

cakes” exactly — and not at, say, “cakes” more generally or “cakes that convey a message

regarding same-sex marriage” more specifically? If “cakes” were the relevant level of

generality, the Commission would have to order the bakers to make Mr. Jack’s requested

cakes just as it ordered Mr. Phillips to make the requested cake in his case. Conversely, if

“cakes that convey a message regarding same-sex marriage” were the relevant level of

generality, the Commission would have to respect Mr. Phillips’s refusal to make the requested

cake just as it respected the bakers’ refusal to make the cakes Mr. Jack requested. In short,

when the same level of generality is applied to both cases, it is no surprise that the bakers

have to be treated the same. Only by adjusting the dials just right — fine-tuning the level of

generality up or down for each case based solely on the identity of the parties and the

substance of their views — can you engineer the Commission’s outcome, handing a win to

Mr. Jack’s bakers but delivering a loss to Mr. Phillips. Such results-driven reasoning is

improper. Neither the Commission nor this Court may apply a more specific level of generality

in Mr. Jack’s case (a cake that conveys a message regarding same-sex marriage) while

applying a higher level of generality in Mr. Phillips’s case (a cake that conveys no message

regarding same-sex marriage). Of course, under Smith a vendor cannot escape a public

accommodations law just because his religion frowns on it. But for any law to comply with the

First Amendment and Smith, it must be applied in a manner that treats religion with neutral

respect. That means the government must apply the same level of generality across cases —

and that did not happen here.

There is another problem with sliding up the generality scale: it risks denying constitutional

protection to religious beliefs that draw distinctions more specific than the government’s

preferred level of description. To some, all wedding cakes may appear indistinguishable. But

1740

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to Mr. Phillips that is not the case — his faith teaches him otherwise. And his religious beliefs

are entitled to no less respectful treatment than the bakers’ secular beliefs in Mr. Jack’s case.

This Court has explained these same points “[r]epeatedly and in many different contexts”

over many years. Smith, 494 U.S. at 887, 110 S.Ct. 1595. For example, in Thomas a faithful

Jehovah’s Witness and steel mill worker agreed to help manufacture sheet steel he knew

might find its way into armaments, but he was unwilling to work on a fabrication line

producing tank turrets. 450 U.S., at 711, 101 S.Ct. 1425. Of course, the line Mr. Thomas

drew wasn’t the same many others would draw and it wasn’t even the same line many other

members of the same faith would draw. Even so, the Court didn’t try to suggest that making

steel is just making steel. Or that to offend his religion the steel needed to be of a particular

kind or shape. Instead, it recognized that Mr. Thomas alone was entitled to define the nature

of his religious commitments — and that those commitments, as defined by the faithful

adherent, not a bureaucrat or judge, are entitled to protection under the First Amendment. Id.,

at 714-716, 101 S.Ct. 1425; see also United States v. Lee, 455 U.S. 252, 254-255, 102 S.Ct.

1051, 71 L.Ed.2d 127 (1982); Smith, supra, at 887, 110 S.Ct. 1595 (collecting authorities). It

is no more appropriate for the United States Supreme Court to tell Mr. Phillips that a wedding

*1740 cake is just like any other — without regard to the religious significance his faith may

attach to it — than it would be for the Court to suggest that for all persons sacramental bread

is just bread or a kippah is just a cap.

Only one way forward now remains. Having failed to afford Mr. Phillips’s religious objections

neutral consideration and without any compelling reason for its failure, the Commission must

afford him the same result it afforded the bakers in Mr. Jack’s case. The Court recognizes this

by reversing the judgment below and holding that the Commission’s order “must be set

aside.” Ante, at 1732. Maybe in some future rulemaking or case the Commission could adopt

a new “knowing” standard for all refusals of service and offer neutral reasons for doing so.

But, as the Court observes, “[h]owever later cases raising these or similar concerns are

resolved in the future, … the rulings of the Commission and of the state court that enforced

the Commission’s order” in this case “must be invalidated.” Ibid. Mr. Phillips has conclusively

proven a First Amendment violation and, after almost six years facing unlawful civil charges,

he is entitled to judgment.

Justice THOMAS, with whom Justice GORSUCH joins, concurring in part and concurring in

the judgment.

I agree that the Colorado Civil Rights Commission (Commission) violated Jack Phillips’ right

to freely exercise his religion. As Justice GORSUCH explains, the Commission treated

Phillips’ case differently from a similar case involving three other bakers, for reasons that can

only be explained by hostility toward Phillips’ religion. See ante, at 1734-1737 (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

1728-1731. Although the Commissioners’ comments are certainly disturbing, the

discriminatory application of Colorado’s public-accommodations law is enough on its own to

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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 1723-1724. Specifically, the parties dispute whether Phillips

refused to create a custom wedding cake for the individual respondents, or whether he

refused to sell them any wedding cake (including a premade one). But the Colorado Court of

Appeals resolved this factual dispute in Phillips’ favor. The court described his conduct as a

refusal to “design and create a cake to celebrate [a] same-sex wedding.” Craig v.

Masterpiece Cakeshop, Inc., 370 P.3d 272, 276 (2015); see also id., at 286 (“designing and

selling a wedding cake”); id., at 283 (“refusing to create a wedding cake”). And it noted that

the Commission’s order required Phillips to sell “`any product [he] would sell to heterosexual

couples,'” including custom wedding cakes. Id., at 286 (emphasis added).

Even after describing his conduct this way, the Court of Appeals concluded that Phillips’

conduct was not expressive and was not protected speech. It reasoned that an outside

observer would think that Phillips was merely complying with Colorado’s public-

accommodations law, not expressing a message, and that Phillips could post a disclaimer to

that effect. This reasoning flouts bedrock principles of our free-speech jurisprudence and

would justify virtually any law that compels individuals to speak. It should not pass without

comment.

*1741 I1741

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, 131 S.Ct. 2653, 180 L.Ed.2d 544

(2011). As the Court explains today, public-accommodations laws usually regulate conduct.

Ante, at 1727-1728 (citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of

Boston, Inc., 515 U.S. 557, 572, 115 S.Ct. 2338, 132 L.Ed.2d 487 (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, 115 S.Ct. 2338 (emphasis added).

Although public-accommodations laws generally regulate conduct, particular applications of

them can burden protected speech. When a public-accommodations law “ha[s] the effect of

declaring … speech itself to be the public accommodation,” the First Amendment applies with

full force. Id., at 573, 115 S.Ct. 2338; accord, Boy Scouts of America v. Dale, 530 U.S. 640,

657-659, 120 S.Ct. 2446, 147 L.Ed.2d 554 (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

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any place of public accommodation.'” 515 U.S., at 561, 115 S.Ct. 2338 (quoting Mass. Gen.

Laws § 272:98 (1992); ellipsis in original). When this law required the sponsor of a St.

Patrick’s Day parade to include a parade unit of gay, lesbian, and bisexual Irish-Americans,

the Court unanimously held that the law violated the sponsor’s right to free speech. Parades

are “a form of expression,” this Court explained, and the application of the public-

accommodations law “alter[ed] the expressive content” of the parade by forcing the sponsor

to add a new unit. 515 U.S., at 568, 572-573, 115 S.Ct. 2338. 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, 115 S.Ct. 2338. 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, 115 S.Ct. 2338; accord, Dale, supra,

at 660-661, 120 S.Ct. 2446.

The parade in Hurley was an example of what this Court has termed “expressive conduct.”

See 515 U.S., at 568-569, 115 S.Ct. 2338. This Court has long held that “the Constitution

looks beyond written or spoken words as mediums of expression,” id., at 569, 115 S.Ct.

2338, and that “[s]ymbolism is a primitive but effective way of communicating ideas,” West

Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 632, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943).

Thus, a person’s “conduct may be `sufficiently imbued with elements of communication to fall

within the scope of the First and Fourteenth Amendments.'” Texas v. Johnson, 491 U.S. 397,

404, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). Applying this principle, the Court has

recognized a wide array of conduct that can qualify as expressive, including nude dancing,

burning the American flag, flying an upside-down American *1742 flag with a taped-on peace

sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing

to salute the American flag, and flying a plain red flag.[1]

1742

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, 88 S.Ct. 1673, 20 L.Ed.2d 672 (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, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). But a

“`particularized message'” is not required, or else the freedom of speech “would never reach

the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or

Jabberwocky verse of Lewis Carroll.” Hurley, 515 U.S., at 569, 115 S.Ct. 2338.

Once a court concludes that conduct is expressive, the Constitution limits the government’s

authority to restrict or compel it. “[O]ne important manifestation of the principle of free speech

is that one who chooses to speak may also decide `what not to say'” and “tailor” the content

of his message as he sees fit. Id., at 573, 115 S.Ct. 2338 (quoting Pacific Gas & Elec. Co. v.

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Public Util. Comm’n of Cal., 475 U.S. 1, 16, 106 S.Ct. 903, 89 L.Ed.2d 1 (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, 115 S.Ct.

2338. 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, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011).

II

A

The conduct that the Colorado Court of Appeals ascribed to Phillips — creating and

designing custom wedding cakes — is expressive. Phillips considers himself an artist. The

logo for Masterpiece Cakeshop is an artist’s paint 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 *1743 ensure that each cake reflects

the couple who ordered it. In addition to creating and delivering the cake — a focal point of

the wedding celebration — Phillips sometimes stays and interacts with the guests at the

wedding. And the guests often recognize his creations and seek his bakery out afterward.

Phillips also sees the inherent symbolism in wedding cakes. To him, a wedding cake

inherently communicates that “a wedding has occurred, a marriage has begun, and the

couple should be celebrated.” App. 162.

1743

Wedding cakes do, in fact, communicate this message. A tradition from Victorian England that

made its way to America after the Civil War, “[w]edding cakes are so packed with symbolism

that it is hard to know where to begin.” M. Krondl, Sweet Invention: A History of Dessert 321

(2011) (Krondl); see also ibid. (explaining the symbolism behind the color, texture, flavor, and

cutting of the cake). If an average person walked into a room and saw a white, multi-tiered

cake, he would immediately know that he had stumbled upon a wedding. The cake is “so

standardised and inevitable a part of getting married that few ever think to question it.”

Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 95 (1987).

Almost no wedding, no matter how spartan, is missing the cake. See id., at 98. “A whole

series of events expected in the context of a wedding would be impossible without it: an

essential photograph, the cutting, the toast, and the distribution of both cake and favours at

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the wedding and afterwards.” Ibid. Although the cake is eventually eaten, that is not its

primary purpose. See id., at 95 (“It is not unusual to hear people declaring that they do not

like wedding cake, meaning that they do not like to eat it. This includes people who are,

without question, having such cakes for their weddings”); id., at 97 (“Nothing is made of the

eating itself”); Krondl 320-321 (explaining that wedding cakes have long been described as

“inedible”). The cake’s purpose is to mark the beginning of a new marriage and to celebrate

the couple.[2]

Accordingly, Phillips’ creation of custom wedding cakes is expressive. The use of his artistic

talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly

communicates a message — certainly more so than nude dancing, Barnes v. Glen Theatre,

Inc., 501 U.S. 560, 565-566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), or flying a plain red

flag, Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).[3] By

*1744 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, 115 S.Ct. 2338. The meaning of expressive conduct, this Court has explained,

depends on “the context in which it occur[s].” Johnson, 491 U.S., at 405, 109 S.Ct. 2533.

Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at

the very least, acknowledge that same-sex weddings are “weddings” and suggest that they

should be celebrated — the precise message he believes his faith forbids. The First

Amendment prohibits Colorado from requiring Phillips to “bear witness to [these] fact[s],”

Hurley, 515 U.S., at 574, 115 S.Ct. 2338, or to “affir[m] … a belief with which [he] disagrees,”

id., at 573, 115 S.Ct. 2338.

1744

B

The Colorado Court of Appeals nevertheless concluded that Phillips’ conduct was “not

sufficiently expressive” to be protected from state compulsion. 370 P.3d, at 283. It noted that

a reasonable observer would not view Phillips’ conduct as “an endorsement of same-sex

marriage,” but rather as mere “compliance” with Colorado’s public-accommodations law. Id.,

at 286-287 (citing Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S.

47, 64-65, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (FAIR); Rosenberger v. Rector and

Visitors of Univ. of Va., 515 U.S. 819, 841-842, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995);

PruneYard Shopping Center v. Robins, 447 U.S. 74, 76-78, 100 S.Ct. 2035, 64 L.Ed.2d 741

(1980)). It also emphasized that Masterpiece could “disassociat[e]” itself from same-sex

marriage by posting a “disclaimer” stating that Colorado law “requires it not to discriminate” or

that “the provision of its services does not constitute an endorsement.” 370 P.3d, at 288. This

reasoning is badly misguided.

1

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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, 63 S.Ct. 1178. Hurley, for

example, held that the application of Massachusetts’ public-accommodations law “requir[ed]

[the organizers] to alter the expressive content of their parade.” 515 U.S., at 572-573, 115

S.Ct. 2338. 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, 126 S.Ct. 1297 (law school refused to allow military

recruiters *1745 on campus); Rosenberger, supra, at 822-823, 115 S.Ct. 2510 (public

university refused to provide funds to a religious student paper); PruneYard, supra, at 77,

100 S.Ct. 2035 (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, 126 S.Ct. 1297; Rosenberger, supra, at 841-842, 115 S.Ct. 2510;

PruneYard, supra, at 85-88, 100 S.Ct. 2035. 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, 106 S.Ct. 903 (“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, 115 S.Ct. 2338 (similar).

1745

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, 106 S.Ct. 903 (collecting cases); Virginia Bd. of

Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761, 96 S.Ct. 1817, 48

L.Ed.2d 346 (1976) (deeming it “beyond serious dispute” that “[s]peech… is protected even

though it is carried in a form that is `sold’ for profit”). Further, even assuming that most for-

profit companies prioritize maximizing profits over communicating a message, that is not true

for Masterpiece Cakeshop. Phillips routinely sacrifices profits to ensure that Masterpiece

operates in a way that represents his Christian faith. He is not open on Sundays, he pays his

employees a higher-than-average wage, and he loans them money in times of need. Phillips

also refuses to bake cakes containing alcohol, cakes with racist or homophobic messages,

cakes criticizing God, and cakes celebrating Halloween — even though Halloween is one of

the most lucrative seasons for bakeries. These efforts to exercise control over the messages

that Masterpiece sends are still more evidence that Phillips’ conduct is expressive. See

Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256-258, 94 S.Ct. 2831, 41 L.Ed.2d

730 (1974); Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, ___,

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135 S.Ct. 2239, 2251, 192 L.Ed.2d 274 (2015).

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, 94

S.Ct. 2831. Because the government cannot compel speech, it also cannot “require speakers

to affirm in one breath that which they deny in the next.” Pacific Gas & Elec., 475 U.S., at 16,

106 S.Ct. 903; see also id., at 15, n. 11, 106 S.Ct. 903 (citing PruneYard, 447 U.S., at 99,

100 S.Ct. 2035 (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, 100 S.Ct. 2035.

III

Because Phillips’ conduct (as described by the Colorado Court of Appeals) was expressive,

Colorado’s public-accommodations law cannot penalize it unless the law *1746 withstands

strict scrutiny. Although this Court sometimes reviews regulations of expressive conduct

under the more lenient test articulated in O’Brien,[4] that test does not apply unless the

government would have punished the conduct regardless of its expressive component. See,

e.g., Barnes, 501 U.S., at 566-572, 111 S.Ct. 2456 (applying O’Brien to evaluate the

application of a general nudity ban to nude dancing); Clark, 468 U.S., at 293, 104 S.Ct. 3065

(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, 109 S.Ct. 2533; accord,

Holder v. Humanitarian Law Project, 561 U.S. 1, 28, 130 S.Ct. 2705, 177 L.Ed.2d 355

(2010).

1746

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, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994); Heart of Atlanta Motel, Inc. v.

United States, 379 U.S. 241, 292, 85 S.Ct. 348, 13 L.Ed.2d 258 (1964) (Goldberg, J.,

concurring)). These justifications are completely foreign to our free-speech jurisprudence.

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States cannot punish protected speech because some group finds it offensive, hurtful,

stigmatic, unreasonable, or undignified. “If there is a bedrock principle underlying the First

Amendment, it is that the government may not prohibit the expression of an idea simply

because society finds the idea itself offensive or disagreeable.” Johnson, supra, at 414, 109

S.Ct. 2533. A contrary rule would allow the government to stamp out virtually any speech at

will. See Morse v. Frederick, 551 U.S. 393, 409, 127 S.Ct. 2618, 168 L.Ed.2d 290 (2007)

(“After all, much political and religious speech might be perceived as offensive to some”). As

the Court reiterates today, “it is not … the role of the State or its officials to prescribe what

shall be offensive.” Ante, at 1731. “`Indeed, if it is the speaker’s opinion that gives offense,

that consequence is a reason for according it constitutional protection.'” Hustler Magazine,

Inc. v. Falwell, 485 U.S. 46, 55, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988); accord, Johnson,

supra, at 408-409, 109 S.Ct. 2533. If the only reason a public-accommodations law regulates

speech is “to produce a society free of … biases” against the protected groups, that purpose

is “decidedly fatal” to the law’s constitutionality, “for it amounts to nothing less than a proposal

to limit speech in the service of orthodox expression.” Hurley, 515 U.S., at 578-579, 115 S.Ct.

2338; see also United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813,

*1747 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) (“Where the designed benefit of a content-

based speech restriction is to shield the sensibilities of listeners, the general rule is that the

right of expression prevails”). “[A] speech burden based on audience reactions is simply

government hostility … in a different guise.” Matal v. Tam, 582 U.S. ___, ___, 137 S.Ct. 1744,

1767, 198 L.Ed.2d 366 (2017) (KENNEDY, J., concurring in part and concurring in judgment).

1747

Consider what Phillips actually said to the individual respondents in this case. After sitting

down with them for a consultation, Phillips told the couple, “`I’ll make your birthday cakes,

shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex

weddings.'” App. 168. It is hard to see how this statement stigmatizes gays and lesbians more

than blocking them from marching in a city parade, dismissing them from the Boy Scouts, or

subjecting them to signs that say “God Hates Fags” — all of which this Court has deemed

protected by the First Amendment. See Hurley, supra, at 574-575, 115 S.Ct. 2338; Dale, 530

U.S., at 644, 120 S.Ct. 2446; Snyder v. Phelps, 562 U.S. 443, 448, 131 S.Ct. 1207, 179

L.Ed.2d 172 (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, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003); conduct a rally on Martin Luther King Jr.’s

birthday, Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S.Ct. 2395, 120

L.Ed.2d 101 (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, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam).

Nor does the fact that this Court has now decided Obergefell v. Hodges, 576 U.S. ___, 135

S.Ct. 2584, 192 L.Ed.2d 609 (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

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something else to portray everyone who does not share [that view] as bigoted” and unentitled

to express a different view. Id., at ___, 135 S.Ct., at 2626 (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. Obergefell itself

emphasized that the traditional understanding of marriage “long has been held — and

continues to be held — in good faith by reasonable and sincere people here and throughout

the world.” Id., at ___, 135 S.Ct., at 2594 (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, 120 S.Ct. 2446 (“[T]he fact that

[the social acceptance of homosexuality] may be embraced and advocated by increasing

numbers of people is all the more reason to protect the First Amendment rights of those who

wish to voice a different view”).

* * *

In Obergefell, I warned that the Court’s decision would “inevitabl[y] … come into conflict” with

religious liberty, “as individuals… are confronted with demands to participate in and endorse

civil marriages between same-sex couples.” 576 U.S., at ___, 135 S.Ct., at 2638 (dissenting

opinion). This case proves that the conflict has *1748 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 ___, 135 S.Ct., at 2642

(ALITO, J., dissenting). If that freedom is to maintain its vitality, reasoning like the Colorado

Court of Appeals’ must be rejected.

1748

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 1727. “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 1727-1728. “[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 1728-1729. Gay persons

may be spared from “indignities when they seek goods and services in an open market.”

Ante, at 1732.[1] I strongly disagree, however, with the Court’s conclusion that Craig and

Mullins should lose this case. All of the above-quoted statements point in the opposite

direction.

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The Court concludes that “Phillips’ religious objection was not considered with the neutrality

that the Free Exercise Clause requires.” Ante, at 1731. This conclusion rests on evidence

said to show the Colorado Civil Rights Commission’s *1749 (Commission) hostility to religion.

Hostility is discernible, the Court maintains, from the asserted “disparate consideration of

Phillips’ case compared to the cases of” three other bakers who refused to make cakes

requested by William Jack, an amicus here. Ante, at 1732. The Court also finds hostility in

statements made at two public hearings on Phillips’ appeal to the Commission. Ante, at

1728-1730. The different outcomes the Court features do not evidence hostility to religion of

the kind we have previously held to signal a free-exercise violation, nor do the comments by

one or two members of one of the four decisionmaking entities considering this case justify

reversing the judgment below.

1749

I

On March 13, 2014 — approximately three months after the ALJ ruled in favor of the same-

sex couple, Craig and Mullins, and two months before the Commission heard Phillips’ appeal

from that decision — William Jack visited three Colorado bakeries. His visits followed a

similar pattern. He requested two cakes

“made to resemble an open Bible. He also requested that each cake be

decorated with Biblical verses. [He] requested that one of the cakes include

an image of two groomsmen, holding hands, with a red `X’ over the image. On

one cake, he requested [on] one side[,] … `God hates sin. Psalm 45:7′ and on

the opposite side of the cake `Homosexuality is a detestable sin. Leviticus

18:2.’ On the second cake, [the one] with the image of the two groomsmen

covered by a red `X’ [Jack] requested [these words]: `God loves sinners’ and

on the other side `While we were yet sinners Christ died for us. Romans 5:8.'”

App. to Pet. for Cert. 319a; see id., at 300a, 310a.

In contrast to Jack, Craig and Mullins simply requested a wedding cake: They mentioned no

message or anything else distinguishing the cake they wanted to buy from any other wedding

cake Phillips would have sold.

One bakery told Jack it would make cakes in the shape of Bibles, but would not decorate

them with the requested messages; the owner told Jack her bakery “does not discriminate”

and “accept[s] all humans.” Id., at 301a (internal quotation marks omitted). The second

bakery owner told Jack he “had done open Bibles and books many times and that they look

amazing,” but declined to make the specific cakes Jack described because the baker

regarded the messages as “hateful.” Id., at 310a (internal quotation marks omitted). The third

bakery, according to Jack, said it would bake the cakes, but would not include the requested

message. Id., at 319a.[2]

Jack filed charges against each bakery with the Colorado Civil Rights Division (Division). The

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Division found no probable cause to support Jack’s claims of unequal treatment and denial of

goods or services based on his Christian religious beliefs. Id., at 297a, 307a, 316a. In this

regard, the Division observed that the bakeries regularly produced cakes and other baked

goods with Christian symbols and had denied other customer requests for designs

demeaning people whose dignity the Colorado Antidiscrimination Act (CADA) protects. See

id., at 305a, 314a, 324a. The Commission summarily affirmed the Division’s no-probable-

cause finding. See id., at 326a-331a.

*1750 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 1730.

See also ante, at 1736-1737 (GORSUCH, J., concurring). But the cases the Court aligns are

hardly comparable. The bakers would have refused to make a cake with Jack’s requested

message for any customer, regardless of his or her religion. And the bakers visited by Jack

would have sold him any baked goods they would have sold anyone else. The bakeries’

refusal to make Jack cakes of a kind they would not make for any customer scarcely

resembles Phillips’ refusal to serve Craig and Mullins: Phillips would not sell to Craig and

Mullins, for no reason other than their sexual orientation, a cake of the kind he regularly sold

to others. When a couple contacts a bakery for a wedding cake, the product they are seeking

is a cake celebrating their wedding — not a cake celebrating heterosexual weddings or

same-sex weddings — and that is the service Craig and Mullins were denied. Cf. ante, at

1735-1736, 1738-1739 (GORSUCH, J., concurring). Colorado, the Court does not gainsay,

prohibits precisely the discrimination Craig and Mullins encountered. See supra, at 1748.

Jack, on the other hand, suffered no service refusal on the basis of his religion or any other

protected characteristic. He was treated as any other customer would have been treated —

no better, no worse.[3]

1750

The fact that Phillips might sell other cakes and cookies to gay and lesbian customers[4] was

irrelevant to the issue Craig and Mullins’ case presented. What matters is that Phillips would

not provide a good or service to a same-sex couple that he would provide to a heterosexual

couple. In contrast, the other bakeries’ sale of other goods to Christian customers was

relevant: It shows that there were no goods the bakeries would sell to a non-Christian

customer that they would refuse to sell to a Christian customer. Cf. ante, at 1730.

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 1731. 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 *1751 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 1723.[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

1751

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and Mullins was not. The Colorado court distinguished the cases on the ground that Craig

and Mullins were denied service based on an aspect of their identity that the State chose to

grant vigorous protection from discrimination. See App. to Pet. for Cert. 20a, n. 8 (“The

Division found that the bakeries did not refuse [Jack’s] request because of his creed, but

rather because of the offensive nature of the requested message…. [T]here was no evidence

that the bakeries based their decisions on [Jack’s] religion… [whereas Phillips] discriminat[ed]

on the basis of sexual orientation.”). I do not read the Court to suggest that the Colorado

Legislature’s decision to include certain protected characteristics in CADA is an impermissible

government prescription of what is and is not offensive. Cf. ante, at 1727-1728. To repeat,

the Court affirms that “Colorado law can protect gay persons, just as it can protect other

classes of individuals, in acquiring whatever products and services they choose on the same

terms and conditions as are offered to other members of the public.” Ante, at 1728.

II

Statements made at the Commission’s public hearings on Phillips’ case provide no firmer

support for the Court’s holding today. Whatever one may think of the statements in historical

context, I see no reason why the comments of one or two Commissioners should be taken to

overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins. The proceedings

involved several layers of independent decisionmaking, of which the Commission was but

one. See App. to Pet. for Cert. 5a-6a. First, the Division had to find probable cause that

Phillips violated CADA. Second, the ALJ entertained the parties’ cross-motions for summary

judgment. Third, the Commission heard Phillips’ appeal. Fourth, after the Commission’s

ruling, the Colorado Court of Appeals considered the case de novo. What prejudice infected

the determinations of the adjudicators in the case before and after the Commission? The

Court does not say. Phillips’ case is thus far removed from the only precedent upon which the

Court relies, Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 113 S.Ct. 2217,

124 L.Ed.2d 472 (1993), where the government action that *1752 violated a principle of

religious neutrality implicated a sole decisionmaking body, the city council, see id., at

526-528, 113 S.Ct. 2217.

1752

* * *

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.

[*] The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of

Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S.

321, 337, 26 S.Ct. 282, 50 L.Ed. 499.

[*] Justice GORSUCH disagrees. In his view, the Jack cases and the Phillips case must be treated the

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same because the bakers in all those cases “would not sell the requested cakes to anyone.” Post, at 1735.

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 1735, 1736-1737, 1737-1738. 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

1724-1725 (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 1728. 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, 88 S.Ct. 964, 19 L.Ed.2d 1263 (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 1727. A vendor can choose the products he sells, but

not the customers he serves — no matter the reason. Phillips sells wedding cakes. As to that product, he

unlawfully discriminates: He sells it to opposite-sex but not to same-sex couples. And on that basis — which

has nothing to do with Phillips’ religious beliefs — Colorado could have distinguished Phillips from the

bakers in the Jack cases, who did not engage in any prohibited discrimination.

[1] Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991); Texas v.

Johnson, 491 U.S. 397, 405-406, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989); Spence v. Washington, 418

U.S. 405, 406, 409-411, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam); Schacht v. United States, 398

U.S. 58, 62-63, 90 S.Ct. 1555, 26 L.Ed.2d 44 (1970); Tinker v. Des Moines Independent Community

School Dist., 393 U.S. 503, 505-506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969); Brown v. Louisiana, 383 U.S.

131, 141-142, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) (opinion of Fortas, J.); West Virginia Bd. of Ed. v.

Barnette, 319 U.S. 624, 633-634, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Stromberg v. California, 283 U.S.

359, 361, 369, 51 S.Ct. 532, 75 L.Ed. 1117 (1931).

[2] The Colorado Court of Appeals acknowledged that “a wedding cake, in some circumstances, may

convey a particularized message celebrating same-sex marriage,” depending on its “design” and whether it

has “written inscriptions.” Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 288 (2015). But a wedding

cake needs no particular design or written words to communicate the basic message that a wedding is

occurring, a marriage has begun, and the couple should be celebrated. Wedding cakes have long varied in

color, decorations, and style, but those differences do not prevent people from recognizing wedding cakes

as wedding cakes. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93,

96 (1987). And regardless, the Commission’s order does not distinguish between plain wedding cakes and

wedding cakes with particular designs or inscriptions; it requires Phillips to make any wedding cake for a

same-sex wedding that he would make for an opposite-sex wedding.

[3] The dissent faults Phillips for not “submitting… evidence” that wedding cakes communicate a message.

Post, at 1748, n. 1 (opinion of GINSBURG, J.). But this requirement finds no support in our precedents. This

Court did not insist that the parties submit evidence detailing the expressive nature of parades, flags, or

nude dancing. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S.

557, 568-570, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995); Spence, 418 U.S., at 410-411, 94 S.Ct. 2727;

Barnes, 501 U.S., at 565-566, 111 S.Ct. 2456. And we do not need extensive evidence here to conclude

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that Phillips’ artistry is expressive, see Hurley, 515 U.S., at 569, 115 S.Ct. 2338, or that wedding cakes at

least communicate the basic fact that “this is a wedding,” see id., at 573-575, 115 S.Ct. 2338. 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, 115 S.Ct. 2338. 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, 115 S.Ct. 2338.

[4] “[A] government regulation [of expressive conduct] is sufficiently justified if it is within the constitutional

power of the Government; if it furthers an important or substantial governmental interest; if the governmental

interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First

Amendment freedoms is no greater than is essential to the furtherance of that interest.” United States v.

O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

[1] As Justice THOMAS observes, the Court does not hold that wedding cakes are speech or expression

entitled to First Amendment protection. See ante, at 1740 (opinion concurring in part and concurring in

judgment). Nor could it, consistent with our First Amendment precedents. Justice THOMAS acknowledges

that for conduct to constitute protected expression, the conduct must be reasonably understood by an

observer to be communicative. Ante, at 1724-1725 (citing Clark v. Community for Creative Non-Violence,

468 U.S. 288, 294, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). The record in this case is replete with Jack

Phillips’ own views on the messages he believes his cakes convey. See ante, at 1742-1743 (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 1743, 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, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995) (citing

previous cases recognizing parades to be expressive); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565,

111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (noting precedents suggesting nude dancing is expressive

conduct); Spence v. Washington, 418 U.S. 405, 410, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (observing the

Court’s decades-long recognition of the symbolism of flags).

[2] The record provides no ideological explanation for the bakeries’ refusals. Cf. ante, at 1734-1735, 1738,

1739-1740 (GORSUCH, J., concurring) (describing Jack’s requests as offensive to the bakers’ “secular”

convictions).

[3] Justice GORSUCH argues that the situations “share all legally salient features.” Ante, at 1735

(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 1736 (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

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indication that religious words, rather than the demeaning image, prompted the objection. See supra, at

1749. 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 1735-1737 (GORSUCH, J., concurring).

[4] But see ante, at 1726 (majority opinion) (acknowledging that Phillips refused to sell to a lesbian couple

cupcakes for a celebration of their union).

[5] The Court undermines this observation when later asserting that the treatment of Phillips, as compared

with the treatment of the other three bakeries, “could reasonably be interpreted as being inconsistent as to

the question of whether speech is involved.” Ante, at 1730. But recall that, while Jack requested cakes with

particular text inscribed, Craig and Mullins were refused the sale of any wedding cake at all. They were

turned away before any specific cake design could be discussed. (It appears that Phillips rarely, if ever,

produces wedding cakes with words on them — or at least does not advertise such cakes. See

Masterpiece Cakeshop, Wedding, http://www.masterpiececakes.com/wedding-cakes (as last visited June

1, 2018) (gallery with 31 wedding cake images, none of which exhibits words).) The Division and the Court

of Appeals could rationally and lawfully distinguish between a case involving disparaging text and images

and a case involving a wedding cake of unspecified design. The distinction is not between a cake with text

and one without, see ante, at 1737-1738 (GORSUCH, J., concurring); it is between a cake with a particular

design and one whose form was never even discussed.

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