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With a 7-2 vote, this controversial case recognized the Cakeshop owner鈥檚 religious free exercise right in his refusal to produce a custom-wedding cake for a same-sex wedding. Specifically, the Court found flagrant anti-religious bias displayed by two members of the Colorado Civil Rights Commission, which initiated proceedings against the Cakeshop. Given the focus on facts, whether the ruling will have any effect on other religious free exercise claims may be doubted. We reprint only an excerpt of Justice Clarence Thomas鈥檚 concurring opinion, which anchored the Cakeshop owner鈥檚 refusal on his free expression rights, possibly giving him a stronger defense than his religious free exercise claim, which the Court here allowed only because of the Colorado agency鈥檚 bias. Omitted are Justice Anthony Kennedy鈥檚 Court opinion, Justice Elena Kagan鈥檚 concurrence, Justice Neil Gorsuch鈥檚 concurrence, and Justice Ruth Bader Ginsberg鈥檚 dissent.
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鈥 right to freely exercise his religion. . . .
While Phillips rightly prevails on his free-exercise claim, I write separately to address his free-speech claim. . . .
I
. . . When [the Massachusetts public-accommodations law] required the sponsor of a St. Patrick鈥檚 Day parade to include a parade unit of gay, lesbian, and bisexual Irish-Americans, the Court unanimously held that the law violated the sponsor鈥檚 right to free speech. Parades are 鈥渁 form of expression,鈥 this Court explained, and the application of the public-accommodations law 鈥渁lter[ed] the expressive content鈥 of the parade by forcing the sponsor to add a new unit.[1] The addition of that unit compelled the organizer to 鈥渂ear witness to the fact that some Irish are gay, lesbian, or bisexual鈥; 鈥渟uggest . . . that people of their sexual orientation have as much claim to unqualified social acceptance as heterosexuals鈥; and imply that their participation 鈥渕erits celebration.鈥 While this Court acknowledged that the unit鈥檚 exclusion might have been 鈥渕isguided, or even hurtful,鈥 it rejected the notion that governments can mandate 鈥渢houghts and statements acceptable to some groups or, indeed, all people鈥 as the 鈥渁ntithesis鈥 of free speech.
The parade in Hurley was an example of what this Court has termed 鈥渆xpressive conduct.鈥. .
II
A
The conduct that the Colorado Court of Appeals ascribed to Phillips鈥攃reating and designing custom wedding cakes鈥攊s expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist鈥檚 paint palate with a paintbrush and baker鈥檚 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鈥攕ketching 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鈥檚 website. See http://masterpiececakes.com/wedding-cakes (as last visited June 1, 2018).
Phillips is an active participant in the wedding celebration. He sits down with each couple for a consultation before he creates their custom wedding cake. . . . He discusses their preferences, their personalities, and the details of their wedding to ensure that each cake reflects the couple who ordered it. In addition to creating and delivering the cake鈥攁 focal point of the wedding celebration鈥擯hillips 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 鈥渁 wedding has occurred, a marriage has begun, and the couple should be celebrated.鈥. . .
Conversation-based seminars for collegial PD, one-day and multi-day seminars, graduate credit seminars (MA degree), online and in-person.