The Supreme Court decision on Masterpiece Cakeshop vs Colorado Civil Rights Commission keeps noting, not just that the original incident happened in 2012, but that the legality of things had since changed:

Page 1:

... because of his religious opposition to same sex marriages—marriages that Colorado did not then recognize—...

Page 2:

... 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 [decision] ... 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...

Etc, etc. These comments suggest that the concept of ex post facto laws would come into play, but nowhere in the discussion have I seen them mentioned. Why is that?


The opinion calls attention to this because it wants to underscore the fact that the legal context at the time of the incident was fundamentally different from that at the time of the decision.

The decision considers the question of whether the cake shop's position was reasonable, given the legal context in which the position was asserted. While this is obviously similar to the prohibition against ex post facto laws, it's not quite the same thing.

By calling attention to the different context, the court leaves open the possibility that the cake shop's position might no longer be reasonable now that the legal context has changed.

  • I believe the shop having a reasonable position was also relevant to the court's evaluation of how the owner was subsequently treated at the hearing and its legal relevance. If the defendant was being patently unreasonable or hostile, the decision might have been different. If the owner was actively aggravating and agitating people, then being treated as he was within that context may not have been a legal problem sufficient enough to warrant a reversal. Aug 7 '18 at 6:37

I think they're probably not touching on ex post facto, but on the fact that as of 2012, gay marriage was still illegal in Colorado, as well as most of the United States.

  • 2
    Being gay and married wasn't illegal in Colorado, though. They simply didn't recognise the marriage as one. Very different things and not really helpful as the mere fact of non-recognition is already mentioned in the question.
    – Nij
    Jun 7 '18 at 5:48

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