The Court essentially punted on the question, noting that it raised complex and difficult issues. To the extent that the dicta provides any guidance going forward, it seems that the greater the obvious expressive content, the greater the constitutional protection. In other words, a cake that contains words or symbols might enjoy greater protection than a cake with no obvious expressive meaning. But that’s speculation. The case wasn’t decided on that basis.
Instead, the Court focused on Phillips’s second claim, holding (by a 7–2 margin) that Colorado violated his right to free exercise of religion when it held him in violation of state public-accommodation law. Justice Kennedy focused on two critical aspects of the case to support his ruling. He first condemned anti-religious comments made by state commissioners during the hearings before the Colorado Civil Rights Commission. He especially singled out a commissioner’s claim that “freedom of religion” has been used to “justify all kinds of discrimination throughout history,” including slavery and the Holocaust. The commissioner called Phillips’s religious-freedom claim “one of the most despicable pieces of rhetoric that people can use.”
Kennedy’s response was devastating:
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. . . . This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law — a law that protects discrimination on the basis of religion as well as sexual orientation.
Kennedy could have stopped his opinion right there. As he notes, there was no objection to those comments from other commissioners, and they weren’t disavowed at any time during the proceedings. One of the actual adjudicators of the case was expressing outright hostility to Phillips’s religious expression, a situation different from and more egregious than lawmakers’ expressing hostility to religious faith when passing legislation.
Had Kennedy stopped his opinion at that point, Phillips’s victory would have been important, but profoundly limited. The obvious response would be for the commissioners to reconsider the case, cleanse their rhetoric of outright hostility, deliver the same result on a cleaner record, and put the more difficult free-speech claim right back in the Court’s lap. But Kennedy didn’t stop. He found a separate ground for concluding that Colorado was motivated by anti-religious animus, and that separate ground will make it difficult for states to take aim at “offensive” religious exercise, even when it occurs in a commercial context….