Case No.16-111 | Colo. App. Decision
Likely the most talked about case this term, Masterpiece Cakeshop will finally be heard. Most major news outlets have covered the case extensively in the run up to oral arguments. We here at GW Law held a panel where scholars discussed the arguments.
To remind readers, the legal question in the case is “Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.”
The Colorado Anti-Discrimination Act provides that “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 . . . .” CDA § 24-34-601
Jack Phillips, owner of Masterpiece Cakeshop, declined to create a custom cake to celebrate a same-sex marriage based on his religious beliefs, but offered other cakes for the couple to purchase. After he declined to create the custom cake, the Colorado Civil Rights Commission ordered that he must create custom cakes for same-sex marriages if he intends to continue creating custom cakes for opposite-sex marriages. Mr. Phillips appealed to the Colorado Court of Appeals.
Mr. Phillips argued that he did not discriminate against the same-sex couple when he declined to make them a custom cake because he did so based on his First Amendment freedom of religious expression and to force him to create cakes against his religious beliefs unlawfully compels speech. The Colorado Court of Appeals rejected his arguments and held that he violated the CDA by discriminating against the same-sex couple when declining to make a custom cake. The court also held that the Civil Rights Commission did not compel his speech by ordering him to create custom cakes for same-sex marriages, and that the CDA does not violate the First Amendment freedom of expression clause.
During GW Law’s Panel Previewing the 2017 Term, Ms. Sherrilyn Ifill of the NAACP brought up an interesting historical point about this case that we feel is worth repeating. She brought up the case of Newman v. Piggie Park, in which the owner of Piggie Park barbeque argued that he should be allowed to curtail service to African-Americans because his special recipe was his artistic expression and it was against his religious beliefs to serve African-Americans. Similar to Mr. Phillips, he allowed African-Americans to be served from a back window, but would not allow them into the shop because it was against his religious belief. She reminded the audience that “religion was very often the rationale that was offered by segregationists and others as a reason for why they would not serve African-Americans.” Will the Court agree that denying to create a custom cake for a same-sex couple should be interpreted the same way as curtailing service based on race was in Piggie Park? Does same-sex marriage have more of a grounding in religion than race? Racial discrimination has always received strict scrutiny judicial review, but sexual orientation has not.
On the other hand, it is well-documented that Mr. Phillips truly denies business when it goes against his religious beliefs. Mr. Phillips declines to make cakes containing alcohol or celebrating Halloween also based on his deeply-held religious beliefs. As Professor Jonathan Turley noted in our panel, this case represents the culmination of the collision course between discrimination laws and free speech, and that the Court will either have to thread the needle between the two or come down in favor of either discrimination or free speech. To complicate matters more, Justice Kennedy, as always, will likely be the swing vote. This is a tough position for him to be in because on the one hand, he is a big proponent of free speech. Yet, Justice Kennedy has been a Supreme Court beacon for expanding the rights of the LGBTQ community, writing the decisions in Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges, where he explicitly held in that people against same-sex marriage based on their religious beliefs would still be allowed to express that belief in light of holding. He will now have to decide to what degree he intended that holding to be interpreted.