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The Cake is Not a Lie

Religious freedom is not an excuse for discrimination, says the Colorado Court of Appeals.

Photo provided by Westword.

A Colorado baker is not permitted to pick and choose who he wants to bake wedding cakes for based on his religious beliefs, the Colorado Court of Appeals ruled in early August.

Instead of baking cakes for gay weddings, he chose to stop making wedding cakes completely

Charlie Craig and David Mullins went to Masterpiece Cakeshop in 2012 hoping to order a wedding cake for their upcoming nuptials.  However, owner Jack Phillips did not want their business; same-sex marriage does not fit into Phillips’ belief system.  Phillips had no issue serving gay people at his bakery, but making a cake for a gay wedding was beyond what he was willing to do.

Upset by Phillips’ refusal, Craig and Mullins filed a complaint with the Colorado Civil Rights Commission.  The judge for the commission disagreed with Phillips’ stance, and ordered him to make cakes for gay weddings if so requested.  Phillips was also put under watch of the court and had to prove that he was not discriminating by filing quarterly reports.  If he continued to turn away orders for gay weddings, he would be fined.  Instead of baking cakes for gay weddings, he chose to stop making wedding cakes completely.

The Colorado Court of Appeals looked at whether the Colorado Anti-Discrimination Act (CADA) impeded upon religious freedom

Phillips appealed the Commission’s ruling to the Colorado Court of Appeals.  He argued that he had a right to turn away business based on religion freedom – that his right under the First Amendment of the Constitution to freely practice his religion allowed him to assert his beliefs in his private business.

The First Amendment allows the free exercise of religion without interference by the government.  Yet this right has limitations: as soon as one’s actions begin to infringe on another’s rights, the freedom is limited.  The government must prove that it has compelling interest in limiting religious rights, and this limit “must be narrowly tailored to advance that interest.

The Colorado Court of Appeals looked at whether the Colorado Anti-Discrimination Act (CADA) impeded upon religious freedom.  CADA forbids discrimination in “employment, housing, and public accommodation . . . based on . . . sexual orientation.”

The Court analyzed whether the CADA was neutral, meaning whether it applies to essentially everyone, rather than picking and choosing.  Phillips argued that CADA allows exceptions for some religious institutes, and therefore is not neutral.  The Court was not persuaded by the argument.  Because CADA does not only apply to religious conduct, but rather applies generally to everyone in Colorado with minimal exceptions, the Court found that CADA is not an impediment on the free exercise of religion.

Phillips claimed that he was being forced to approve of gay marriage by baking a cake, thus compelling him to speak a message he did not believe in

Phillips also argued that his First Amendment rights to freedom of expression were being denied by being forced to make a cake for a gay wedding.  The First Amendment freedom of speech not only allows one to speak as he may please, but also allows one to refrain from speaking.  Phillips claimed that he was being forced to approve of gay marriage by baking a cake, thus compelling him to speak a message he did not believe in.

The Court asked whether forcing Phillips to comply with CADA was essentially forcing him to agree with gay marriage.  It determined that merely making a cake for a wedding, regardless of who was to be married, did not demonstrate a belief one way or another.  Instead, if anything, it demonstrated compliance with the law.  The Court stated that the public would not generally perceive Phillips as a gay marriage supporter simply because he baked a cake, at a cost, for a gay couple.  Therefore, by requiring Phillips to comply with CADA, he was not being compelled to publicly approve of gay marriage, but rather was being compelled to not discriminate.  Phillips is still free to publicly state that he does not agree with gay marriage, he may just not do so by refusing business.

Since Phillips’ bakery is open to the public, he must abide by public accommodation laws

The Court’s decision rests heavily on its interpretation of CADA, a form of a public accommodation law.  Public accommodation laws “prohibit discrimination or segregation in places of public accommodation.”  The public places include hotels, restaurants, theaters, sports arenas, and anywhere essentially open to the public.  Private clubs, such as golf clubs or dinner clubs, are not subject to the law.  Religious institutes also are not completely subject to the laws, as that could be seen as a violation of the separation of church and state.  Since Phillips’ bakery is open to the public, he must abide by public accommodation laws.

In its analysis of the issues, the Court briefly referred to the recently decided case of Obergefell v. Hodges, which legalized gay marriage across the country.  Had Phillips’ case been decided before the Obergefell decision was reached, it seems unlikely that the finding would be any different.  The Colorado Court relied on whether CADA limited speech and religions freedom rather than on whether marriage was a fundamental right.  The Court here had no need to decide whether having a cake baked for a wedding was a fundamental right.  Thus, Obergefell likely did not influence the Court’s decision significantly.

The recent trend of cases ending legal discrimination against gays has provided hope to many who feel they have been harassed and discriminated against their whole lives

Phillips has not confirmed whether he will appeal the decision to the U.S. Supreme Court.  If he chooses to do so, the Court would likely develop a similar analysis to that of the Colorado Court. Masterpiece Cakeshop is still open in Colorado, and has gained significant publicity from the ordeal.  A crowdfunding account has been started by those who support Phillips’ and believe that he has lost business over the case.

Phillips is not the first to suffer such a fate.  An Oregon baker also refused to bake a wedding cake for a gay couple.  Melissa Klein, owner of Sweet Cakes by Melissa, was allegedly willing to bake a cake for the upcoming nuptials of Rachel Cyer and Laurel Bowman.  However, her husband Aaron Klein did not agree and instead allegedly quoted a verse from Leviticus to the couple.  Rachel and Laurel filed a complaint with the Oregon Labor Commission.  Aaron posted the complaint publicly on Facebook, exposing Rachel and Laurel’s home address.

The Kleins were ultimately ordered to pay $135,000 in damages to Rachel and Laurel.  Similar to the Colorado case, the Oregon Labor Commissioner found that public accommodation laws forbid businesses from discriminating based on sexual orientation.  The Kleins have the option to appeal the ruling.

Like the Jack Phillips case, if the Kleins were to reach the Supreme Court, they may not find much luck.  The recent trend of cases ending legal discrimination against gays has provided hope to many who feel they have been harassed and discriminated against their whole lives.  Courts across the United States, including the Supreme Court, are working diligently to stop the bleeding.

Paige Miles Feldmann, Managing Editor
About Paige Miles Feldmann, Managing Editor (20 Articles)
Paige Miles Feldmann is a 2016 graduate and served as the Managing Editor of the Campbell Law Observer for the 2015-2016 academic year. Originally from Erie, Pennsylvania, she graduated from Penn State with a finance degree. Following her first year of law school, she interned with the Clerk of Superior Court for Chatham County, the Wake County Family Court, and the Wake County Public Defender. She also competed on a Campbell Law Trial Team in the Buffalo-Niagara Mock Trial Competition. Paige worked with the Wake County District Attorney as an intern in the misdemeanor section during her third year.
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