…as Justice Neil Gorsuch notes (in a concurring opinion joined by Justice Samuel Alito), either all four bakers violated the Colorado anti-discrimination law, or none did. Gorsuch writes:
[T]here’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).
As I argue in the Georgetown Journal of Law and Public Policy, “Disagreement is not always discrimination.” And this is true when it comes to disagreements about same-sex marriage.
Phillips didn’t discriminate based on sexual orientation when he refused to design and bake a cake for a same-sex wedding. He didn’t take his customer’s sexual orientation into consideration at all. He declined to use his artistic abilities to create a custom cake to celebrate a same-sex wedding because he objected to same-sex marriage, based on the common Christian belief that such partnerships (along with many other relationships—sexual and not, dyadic and larger, same-sex and opposite-sex) aren’t marital.
Nowhere need Phillips’ reasoning have even referred to the partners’ sexual orientation, much less any ideas or attitudes about gay people as a class (good or bad, explicit or not).
It wasn’t his customer’s identity that motivated Phillips at all. It is even clearer that Phillips’ reason for refusing to bake the wedding cake was not the invidious discrimination of avoiding contact with others on equal terms. As Phillips said to the same-sex couple, “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.” He sought only to avoid complicity in what he considered one distortion of marriage among others—as shown by his refusal to create divorce cakes as well.