This fall the Supreme Court will hear a case that involves a clash of two important societal values: the right to freedom of speech and the free exercise of religion, both protected by the First Amendment, against a Colorado law that prohibits discrimination based on sexual orientation. Jack C. Phillips, the owner of Masterpiece Cakeshop in Lakeland, Colorado, refused to design and create a wedding cake for a celebration of a same-sex marriage. He claims that creation of the cake is artistic expression protected by the First Amendment’s free speech and free exercise of religion clause. But the same-sex couple and Colorado argue that Phillips’ work on the cake is not expressive conduct according to the law and that the state has a significant interest in preventing discrimination based on sexual orientation. For news, analysis, history & legal background read on.

News & Updates

December 5, 2017: Supreme Court Oral Argument Transcript

The Justices began with a leading question of what constitutes an artist to start of the case discussion.

New York Times>
November 22, 2017: Can the First Amendment Be Used to Fight Gay Rights and Abortion?

The New York Times takes a look at the upcoming Cake case and other lawsuits brought by the Alliance Defending Freedom to create a “wider sphere of protected religious expression.”

New York Times>
November 5, 2017: Leading First Amendment Scholars Disagree on Cake Case

What is the balance between protected expression and unlawful discrimination? A growing divide among leading First Amendment thinkers is brewing before the Supreme Court argument in Masterpiece Cake next month.

New York Times>
November 1, 2017: Congressional Democrats Write Brief in Support of Charlie Craig and David Mullins, Against Jack Phillips

35 Senators and 174 House members signed the amicus brief to the Supreme Court regarding Masterpiece Cakeshop v. Colorado Civil Rights Commission. “It is not an answer to say that it is expressive conduct, that it is speech,” said Rep. Sean Patrick Maloney (D-N.Y.), co-chair of the Congressional LGBT Equality Caucus, in denouncing Phillips’ First Amendment claim for refusing Craig and Mullins their wedding cake.

Talk Media News>
September 16th, 2017: Supreme Court to Decide Whether First Amendment Protects Baker Who Declined Service to Gay Couple

The Supreme Court will hear arguments this fall in a case involving the decision of Jack Phillips, a Colorado-based baker, to decline service to a gay couple who requested he design the cake for their 2012 wedding. Although Phillips refused to bake their wedding cake because he said it would violate his deeply-held religious convictions, the Court will consider whether the First Amendment’s protection of freedom of speech, not just freedom of religion, prevents the government from compelling “him to endorse a message at odds with his beliefs.”

New York Times>
September 9, 2017: Trump Administration Supports Baker Over Gay Couple

July 22nd, 2016: Phillips Asks U.S. Supreme Court To Hear Appeal After Colorado State Supreme Court Denies It

After the Colorado Supreme Court affirmed a lower court’s opinion siding against Phillips by denying his appeal, lawyers for the baker filed a petition asking the U.S. Supreme Court to hear his case. Phillips is being represented by attorneys with the Alliance Defending Freedom, a conservative Christian group dedicated to promoting “religious freedom, the sanctity of life, and marriage and family.” Craig and Mullins are being represented by the American Civil Liberties Union, who argue that businesses shouldn’t be allowed to discriminate against L.G.B.T. people by citing their religious beliefs.

Denver Post>
August 13th, 2015: Colorado Appellate Court Says Free Speech Rights Don’t Allow Phillips to Discriminate Against Gay Couple

A three-judge panel of the Colorado Court of Appeals sided against Phillips, ruling that his First Amendment rights did not exempt him from a Colorado law banning discrimination on the basis of sexual orientation. The Court rejected Phillips’ claim that baking a cake for a gay wedding forces him to endorse same-sex marriage.

Denver Post>
May 30th, 2014: Colorado Civil Rights Commission Rules Against Phillips

The Colorado Civil Rights Commission upheld a decision by a Denver judge finding that Jack Phillips violated Colorado law, which prohibits discrimination on the basis of sexual orientation, by denying service to a gay couple.

Denver Post>

History & Legal Cases

Charlie Craig and David Mullins visited Masterpiece Cakeshop, in Lakewood, Colorado, in July 2012. They asked Jack C. Phillips, the owner of Masterpiece, to create a cake that they could use for a celebration of their same-sex wedding. Craig and Mullins were not yet married. Colorado at the time would not recognize same sex marriages, so they planned to wed in Massachusetts and later celebrate in Colorado.

Phillips declined. He said that his religious beliefs precluded him from creating cakes for same sex weddings. Craig and Mullins filed a complaint with the Colorado Civil Rights Commission alleging that Masterpiece Cakeshop and Phillips had violated the Colorado Anti-Discrimination Act, Sections 24-34-301 to -801, C.R.S. 2014, by discriminating against them on the basis of sexual orientation in a place of public accommodation (section 24-34-601(2), C.R.S. 2014.

After the Civil Rights Commission determined probable cause for the allegations of discrimination, Craig and Mullins filed a complaint with the Office of Administrative Courts, which ruled in their favor. The Colorado Civil Rights Commission issued a cease and desist order against Masterpiece to ensure compliance with the law. Masterpiece appealed to the Colorado Court of Appeals.

Colorado Court of Appeals, 2015

The Colorado Court of Appeals considered whether the application of Colorado’s Anti-Discrimination law violated Phillips’ First Amendment rights to freedom of speech and the free exercise of religion. Philllips argued that a wedding cake carries a celebratory message about marriage, and that designing and creating such a cake is expressive conduct and symbolic speech. Requiring him to make the cake, he argued, compels speech in violation of the First Amendment.

The Court ruled that there was no constitutional violation, as Phillips’ work on a cake was conduct and not expressive speech and that it was compelled by a neutral law of general applicability, not one aimed at expression.

The court disagreed with the contention by Masterpiece Cakeshop that creating a wedding cake in this instance is expressive conduct. The test for recognizing expressive conduct, the court said, quoting Spence v. Washington (1974), is whether “an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” The court answered no, saying that the public would understand that Phillips and Masterpiece Cakeshop was simply complying with the law. Because the law prohibited discrimination based on sexual orientation, “it is unlikely that the public would view Masterpiece’s creation of a cake for a same-sex wedding celebration as an endorsement of that conduct. Rather, we conclude that a reasonable observer would understand that Masterpiece’s compliance with the law is not a reflection of its own beliefs.

The court also rejected Masterpiece Bakeshop’s claim that the order violated its First Amendment free exercise of religion rights. The Supreme Court has ruled (Employment Division, Department of Human Resources v. Smith, 494 U.S. 872 (1990), that the Free Exercise Clause does not shield an individual of “the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Such neutral laws need only serve a legitimate governmental purpose to be consistent with the First Amendment. The Colorado Court of Appeals ruled that the nondiscrimination law was neutral and of general applicability, and “does not impose burdens on religious conduct not imposed on secular conduct. The court said that the law “is rationally related to Colorado’s interest in eliminating discrimination in places of public accommodation.”

Court of Appeals Opinion>
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Supreme Court of the United States, 2017

The issue before the Court: Colorado’s public accommodations law compels Jack Phillips, owner of Masterpiece Cakeshop, to create a cake that violates his religious beliefs against same-sex marriage. By doing so, does the law infringe Phillips’ First Amendment rights of freedom of speech or free exercise of religion?

Because First Amendment Watch is a project dedicated to covering issues related to the freedom of speech, press, petition, and assembly, the material below focuses on the free speech portion of Phillips’ claim.

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Petition for a Writ of Certiorari (for Jack Phillips/Masterpiece Cakeshop), July 22, 2016

Phillips argues in his brief that the First Amendment forbids compelled speech. Wooley v. Maynard (1977) established that free speech “includes both the right to speak freely and the right to refrain from speaking at all.” In Wooley, the Court held that New Hampshire violated the First Amendment when it required George Maynard, a Jehovah’s Witness, to display the state motto, “Live Free or Die,” on his license plate. The Court said that the state’s interest had to give way to Maynard’s “right of individuals to hold a point of view different form the majority and to refuse to foster . . . an idea they find morally objectionable.”

Contrary to Wooley, the brief argued, the Colorado Court of Appeals held that “the state may compel Phillips to create a custom wedding cake promoting a morally objectionable message.”

Weddings, the brief argues, are “inherently expressive events” and “wedding cakes are one of their most recognizable celebratory features.” The brief attacks the conclusion of the Colorado Court of Appeals that Phillips’ speech was required by the nondiscrimination law and thus would be not necessarily be seen as expressing his own views about same-sex marriage. The brief argued that dissemination of a particular view was forced on Phillips and compromised his right to control his own viewpoint. The court required Phillips to design a cake “and bring it to life in three dimensional form using a variety of artistic techniques that range from painting to sculpture.” He was thus required “to conceive and form an artistic monument to a concept of marriage he finds morally objectionable.”

Petition>
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Brief of the Respondent (Charlie Craig and David Mullins), November 28, 2016

The plaintiffs argue that the Colorado antidiscrimination law is not targeted at suppressing the content of speech. “Colorado’s anti-discrimination law is a content- and viewpoint-neutral regulation of business conduct, not a law that targets speech. It applies to all businesses that offer goods or services to the general public, and merely requires that they not discriminate against their customers on the basis of race, sex, sexual orientation and several other protected characteristics. The Act does not require the Company to affirm its support for the anti- discrimination goals of the Act, for any of the groups protected against discrimination by the Act, or for the marriages of same-sex couples. The court below correctly rejected the Company’s claim that the right to free speech entitles it to discriminate in violation of the Act…”

“This Court’s compelled speech decisions have consistently differentiated between laws that target speech or alter the message of private expressive associations, and laws that regulate commercial business practices without regard to content or viewpoint. . .This case presents the latter. Colorado’s anti-discrimination law does not compel speech, it merely requires public accommodations in the state to provide equal treatment to protected groups. . . .”

The brief continued: “Because the Act is neutral and generally applicable, it need only serve a legitimate state interest. The Act easily satisfies that standard. This Court has recognized that the government interest in combating discrimination is not merely legitimate, but compelling, and that anti-discrimination laws are the least restrictive means of achieving that purpose.”

The brief compared the case to Rumsfeld v. Forum for Academic and Institutional Rights, Inc. Supreme Court, 547 U.S. 47 (2006). There, a group of law schools argued that the Solomon Amendment violated the First Amendment by requiring the schools, by welcoming military recruiters to campus, to endorse the government message that gay people were not welcome in the U.S. military. The Supreme Court in Rumsfeld ruled that the Solomon Amendment “regulates conduct, not speech. It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.”

Plaintiff Brief>

Analysis & Opinion

November 27, 2017: Is the Masterpiece Cake Case Really About Free Speech?

Law Professor Andrew Koppelman discusses the confusion over Masterpiece Cakeshop. “Let’s not forget what this case is really about: the objection of some conservative Christians to facilitating same-sex marriage. Some of those objections can be shoehorned into a broad understanding of free speech. Others, equally strong, can’t.,” writes Koppelman.

The American Prospect>
September 20th, 2017: Free Exercise Doesn’t Protect Phillips, Free Speech Might

In an article for The Federalist, attorney Margot Cleveland argues that the First Amendment’s protection of freedom of religion does not shield Phillips from laws banning discrimination. She points to the Supreme Court’s decision in Employment Division v. Smith, where the Court held that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” But Cleveland argues that because “the constitutional guarantee of free exercise of religion no longer shields faith from government infringement,” people like Phillips have to “seek refuge in the greater protection the justices afford speech,” in order to not have “to violate their conscience.”

The Federalist>
September 14th, 2017: ACLU Says A Win For Phillips’ Would Open Door to Discrimination

Lawyers with the American Civil Liberties Union write on the legal advocacy groups “Speak Freely” blog that if the Supreme Court sides with Phillips, it “could open the door to discrimination against people of minority faiths, against women, against single parents, and more.” They argue that if the Court accepts Phillips’ claim that “the Constitution’s free speech protections allow businesses with an expressive or creative element to refuse service to some people,” then “any business owner that provides custom services or products could claim a right to discriminate.”

ACLU>
June 27th, 2017: Denver Post Editorializes That Supreme Court Should Rule Against Phillips

The Editorial Board of The Denver Post argues that Jack Phillips is “not the victim.” Instead, Charlie Craig and David Mullins “are the victims who suffered the real harm of discrimination.” They contend that a wedding cake “for sale is far less expression than it is a tangible good” and that baking one for a gay wedding is not “an overt expression of opinion or belief.”

Denver Post>
June 27th, 2017: Cake Case Isn’t About Discrimination; It’s About Free Speech

David Harsayni, a senior editor with The Federalist, argues that “the case isn’t about discrimination or challenging gay marriage,” but rather its about religious liberty and free speech. He sees the Colorado courts’ decision to forbid Phillips from discriminating against gay couples as “an effort to empower the state to coerce a minority of people to see the world their way.”

The Federalist>