Cake, art, gay marriage, and religion – a recipe for litigation

Let's look at Masterpiece Cakeshop v. Colorado Civil Rights Commission, [Briefs] up for oral argument at the US Supreme Court on December 5.

Colorado's Anti-Discrimination Act says:

"It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation."


Jack Phillips – who describes himself as a cake artist – refused to make a custom cake for the wedding of Charlie Craig and David Mullins. Phillips said he refused not because of Craig's and Mullins's sexual orientation, but because designing a cake to celebrate a same-sex marriage would conflict with his religious beliefs. As his brief puts it, "His decisions on whether to design a specific custom cake have never focused on who the customer is, but on what the custom cake will express or celebrate."

Craig, Mullins, and the Colorado Civil Rights Commission take the position that Phillips violated the Anti-Discrimination Act, while Phillips argues that the 1st amendment protects his refusal from being punished by the Colorado government.

Phillips stresses [Brief] that the 1st amendment protects the expressive freedom of those who create art for a living, and points out that his cakes carry messages about marriage and about the individuals being married. He says that the 1st amendment bars Colorado from forcing him to make cakes that convey messages that violate his religious beliefs and bars Colorado from punishing him for refusing to do so. Phillips wants the Supreme Court to apply "strict scrutiny" to his combination free speech and free exercise of religion claims. He asserts that Colorado has no legitimate interest here: "While the Commission has an interest in ensuring that businesses are open to all people, it has no legitimate—let alone compelling—interest in forcing artists to express ideas that they consider objectionable." The United States filed a brief [Brief] which essentially echoes Phillips' arguments.

The Colorado Civil Rights Commission [Brief], Craig, and Mullins [Brief] argue that this case involves commercial conduct rather than protected expression. With a slightly different view of the facts, they argue that Colorado "prohibited only [Phillips's] discriminatory policy of refusing to sell any wedding cake of any kind to any gay couple." They also recite a somewhat unconvincing parade of horribles: "Any 'expressive' business could discriminate, regardless of motive. And many businesses can characterize themselves as 'expressive.' For example, a family portrait studio could enforce a 'No Mexicans' policy. A banquet hall could refuse to host events for Jewish people. A hair salon could turn away a lesbian woman who wants a new hair style because she will be attending a special event."

For me the really big question is – Why did Phillips refuse to make a cake? He says it was not "because of" opposition to Craig's and Mullins's sexual orientation, but rather was "because of" his opposition to same-sex marriage. However, the Colorado Court of Appeals [Opinion] spent several pages addressing this very point, and ultimately concluded that Phillips's distinction is "one without a difference." This – to me – is a finding of fact that he refused servicing Craig and Mullins because of their sexual orientation rather than because of some religious belief or artistic imperative, and one rarely sees the US Supreme Court take issue with findings of fact by lower courts. If I'm right, then it will be hard for Phillips and his Masterpiece Cakeshop to win.

[For a list of current employment law cases, see Supreme Court Watch.]