To let them eat cake or not to let them eat cake? That is the question facing the Supreme Court of the United States in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. Represented by the American Civil Liberties Union, David Mullins and Charlie Craig seek to have the actions of a Colorado bakery owner declared as unconstitutional discrimination based on sexual orientation.
[I]t was his company policy to refuse to make a cake for any same-sex couple’s wedding celebration, “just as he would not be willing to make a pedophile a cake.”
In 2012, David Mullins and Charlie Craig, a soon to be married homosexual couple, visited Masterpiece Cakeshop in Lakewood, Colorado, to order their wedding cake. Mullins and Craig were denied service by the cake shop owner, Jack Phillips, who claimed “his religious beliefs would not allow him to have anything to do with same-sex marriage” and “other bakeries would accommodate them.” Phillips stated he has turned away other same-sex couples in the past, as it was his company policy to refuse to make a cake for any same-sex couple’s wedding celebration, “just as he would not be willing to make a pedophile a cake.” When he appeared on The View in June of 2017, Phillips cited a higher authority when he claimed, “I don’t believe that Jesus would have made the cake if he had been a baker.”
In 2012, Mullins and Craig filed a complaint in Colorado state court against Masterpiece Cakeshop, “arguing that a Colorado civil-rights law required Phillips to provide his services to all customers regardless of their sexual orientation.” In response, Phillips claimed “the free speech and free exercise clauses of the First Amendment to the United States Constitution prohibit Colorado from enforcing its civil-rights law against him under these circumstances.”
The lower courts ruled Phillips violated Colorado’s longstanding public accommodations law, which “prohibits public accommodations, including businesses such as Masterpiece Cakeshop, from refusing service based on factors such as race, sex, marital status, or sexual orientation.” In returning a unanimous decision against Phillips in 2015, the Colorado Court of Appeals “relied in part on the Supreme Court’s June 2015 Obergefell v. Hodges ruling.” The Supreme Court of the United States announced their decision to grant certiorari in the case in June of 2017.
In their briefs to the Supreme Court, both parties phrase the questions presented very differently. In one brief, “Mr. Phillips’s lawyers say the justices must resolve ‘[w]hether applying Colorado’s public accommodations law to compel Mr. Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the free-speech or free-exercise clauses of the First Amendment.’” In contrast, the attorneys for Mr. Mullins and Mr. Craig state the main issues are “whether the free-speech clause is implicated by a ‘neutral state law that does not target speech’ and whether the free-exercise clause could possibly be violated by a ‘state law that is neutral and generally applicable.’”
Mr. Phillips argues his business is one with a creative and expressive element, thus his decision to refuse service to gay couples in violation of laws against discrimination is protected by the Constitution’s free speech clause.
Within his First Amendment claims, Mr. Phillips believes that both his right to free speech, as well as his freedom of religion were violated by the state court’s determination that he could not refuse service to gay couples. The basis of Phillips’s claim is that “The First Amendment’s guarantees of free speech and free religious exercise prohibit Colorado from compelling him to make cakes that violate his conscience.” Framing the basis for his free speech claim, Mr. Phillips argues his business is one with a creative and expressive element, thus his decision to refuse service to gay couples in violation of laws against discrimination is protected by the Constitution’s free speech clause.
As grounds for Mr. Phillips’s religious freedom argument, the bakery “argues that its religious beliefs entitle it to an exemption from antidiscrimination laws.” The Supreme Court has considered religious exemptions in the past, most notably in the case of Employment Division, Department of Human Resources of Oregon v. Smith. In that case, the Court refused to grant a religious exemption from laws criminalizing the use of peyote, a powerful hallucinogen, for members of the Native American Church. Though the Court recognized that the use of peyote was a form of religious exercise for the members of the Native American Church, it understood the law against peyote usage as a “neutral law of general applicability” and “observed that the Court has never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that government is free to regulate.”
While the cake shop stressed Phillips’s argument as a concern for freedom of speech and religion at the state and appellate court levels, the focus and concern now seems to be on artistic freedom. In response to the Supreme Court’s announcement that it was granting certiorari to the case, senior counsel for Alliance Defending Freedom, David Cortman, said, “Every American should be free to choose which art they will create and which art they won’t create without fear of being unjustly punished by the government…We are all at risk when the government is able to punish citizens like Jack just because it doesn’t like how he exercises his artistic freedom.”
“Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights.”
Most recently, the Department of Justice filed a brief on behalf of Mr. Phillips. “The government agreed with Phillips that his cakes are a form of expression, and he cannot be compelled to use his talents for something in which he does not believe.” Acting Solicitor General Jeffrey B. Wall wrote in the brief, “Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights.”
The DOJ frames the free speech argument as one of compelled speech. As a general rule concerning compelled speech, the Supreme Court in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston stated, “a speaker has the autonomy to choose the content of his own message and, conversely, to decide what not to say.” In regards to this argument, the Colorado Court of Appeals reasoned that the bakery “would not convey a message supporting same-sex marriages merely by abiding by the law and serving its customers equally. …And to the extent that a wedding cake communicated such a message, the court believed that reasonable observers generally would not attribute that message to [the bakery].”
Many cases raising similar issues could potentially help the Supreme Court make its decision in the Masterpiece Cakeshop case. In June of 2015, the Supreme Court ruled in the landmark decision of Obergefell v. Hodges “marriage is a fundamental right that states may not prohibit to gay couples,” making gay marriage legal in all 50 states. While creating a bright line rule in Obergefell, the lines are less clear when it comes to litigating issues related to gay marriage. This grey area has been tested by many cases heard by the U.S. Supreme Court, as well as state courts across the nation.
In Pavan v. Smith, the Supreme Court reversed the state Supreme Court of Arkansas by requiring the state to list same-sex parents on birth certificates. In its opinion, the Court quoted language of the Obergefell decision, stating that by condoning the refusal to list both parents on the birth certificate because of their sexual orientation, the Arkansas Supreme Court denied married couples “access to the constellation of benefits that the state has linked to marriage.”
The Washington Supreme Court heard a case in which the owner of Arlene’s Flowers in Richland, Washington, refused to sell flowers to a gay couple for their wedding. The state Supreme Court held the florist’s denial of services violated state laws that “bar discrimination in public businesses on the basis of sexual orientation” and that the law “does not infringe on her free speech.”
The Supreme Court is set to hear oral arguments in the Masterpiece Cakeshop case in the term beginning in October of 2018. What began as a dispute over cake will soon lead to a ruling that could seriously impact the laws surrounding religious and expressive freedoms. LGBTQ activists are concerned the recent addition of conservative Justice Neil Gorsuch could tip the Court in Phillips’s favor. As the Economist reported, “If the conservative-tilting Supreme Court ultimately sides with Mr. Phillips, it will have to work out how to limit the fallout of a decision that prioritizes solicitude toward religious views over fair-dealing in the marketplace.” As for Mullins and Craig, though they are “disappointed that the courts continue debating the simple question of whether LGBT people deserve to be treated like everyone else, [they] hope that [their] case helps ensure that no one has to experience being turned away simply because of who they are.”