@Jazzhead
I don't know how you make that claim. The second sentence reads:
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.
https://www.supremecourt.gov/opinions/17pdf/16-111_j4el.pdf
7th page:
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.â€
18th page:
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,â€
29th page:
We
know this because all of the bakers explained without contradiction that they would not sell the requested cakes to anyone, while they would sell other cakes to members of the protected class (as well as to anyone else). So, for example, the bakers in the first case would have refused to sell a cake denigrating same-sex marriage to an atheist customer, just as the baker in the second case would have refused to sell a cake celebrating same-sex marriage to a heterosexual customer. And the bakers in the first case were generally happy to sell to persons of faith, just as the baker in the second case was generally happy to sell to gay persons. In both cases, it was the kind of cake, not the kind of customer, that mattered to the bakers.
33rd page:
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.’â€
35th page:
The fact that Phillips might sell other cakes and cookies to gay and lesbian customers was irrelevant to the issue Craig and Mullins’ case presented.
@thackney - My apologies; I didn't make myself clear. I know that Mr. Phillips offered to sell other baked goods. But what was never entirely clear from the record was whether he was only refusing to make a custom wedding cake, or whether he would have refused to sell them any wedding cake at all. (The strong inference is the latter, IMO; since he turned his customers away before having any discussion regarding the design of the cake.)
His website has said for several years now that he is not taking orders for custom wedding cakes. But many wedding cakes are shown pictured on his website, and I have seen photos of him in his shop where there are wedding cakes on display. It seems that he continues to sell "off the shelf"
wedding cakes, although not custom ones. Can a gay couple come in and purchase one of those off-the-shelf wedding cakes? If they cannot, that greatly increases the odds that Phillips has engaged in unlawful discrimination. See, e.g., Kagen's concurrence, where she makes the logical argument that discrimination exists when a baker won't sell to a gay couple the same product he sells to others. But so long as Phillips has no objections to selling his off-the-shelf wedding cakes to both gays and straights, then his refusal to make custom cakes for gay weddings suddenly implicates the free speech arguments made by Thomas's concurrence.
However, Thomas' concurrence had no supporters other than Gorsuch, and all the other Justices focused only on the free exercise claim. That may very well have been because of bad (or, to be more precise) uncertain facts on the record.
The SCOTUS's jurisdiction is unique in that, more than most courts, it picks and chooses the cases it wants to hear. In Masterpiece, the facts as briefed contained too many ambiguities for a majority to form on the Constitutional issues. So they punted, and disposed of Mr. Phillips' case by declining to provide him (or any other storeowner) guidance whether claiming religion creates an exception to generally-applicable laws against discrimination.
Of course, one could say that the question was asked and answered over 40 years ago, in the Piggie Park case. There, shortly after the 1964 Civil Rights Act, a bigot claimed religion as the basis for not seating blacks in his restaurant. The Supreme Court quickly and without controversy held that he was full of shit.