Case preview: The wedding cake decision

In early December, the Supreme Court will hear arguments in a significant case that “takes the cake” literally, as the issues of religious expression and same-sex civil rights converge in a lawsuit first filed in 2012. 

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the question before the court is if a state can constitutionally enforce a civil rights law against a bakery whose owner declined, for First Amendment free speech and religious reasons, to make a cake for a same-sex couple’s wedding party.

Jack Phillips and his wife own a business in Colorado, where as a cake artist Phillips designs cakes. In their court petition, Phillips’ attorneys note that due to his beliefs, Phillips has also declined to make cakes that celebrate Halloween, anti-American or anti-family themes, atheism, racism, or indecency. When approached by a same-sex couple about making a cake for their wedding, Phillips declined to design a cake with that message, but he offered to make any another cake for them that didn’t conflict with his beliefs.

The couple declined that offer and then got a free wedding cake from another local bakery. They then filed a complaint with the Colorado Rights Commission, which ruled that Masterpiece Cakeshop violated the Colorado Anti-Discrimination Act (or CADA) and it ordered the business to create same-sex marriage wedding cakes if it also created other wedding cakes.

Phillips argued that the CADA should be interpreted to allow him to refuse to design the cake under the Constitution’s compelled speech and free exercise of religion doctrines.  

A Colorado Appeals Court disagreed, stating that Phillips’ cake designing was conduct and not free speech, and that the commission’s order didn’t violate the Constitution’s free exercise of religion clause. The Colorado state supreme court didn’t accept Phillips’ appeal and his attorneys then petitioned the United States Supreme Court in July 2016, when the Court only had eight Justices after Antonin Scalia’s death.

The Court considered the case 18 times in private conference and finally granted the appeal in late June 2017 after Neil Gorsuch joined the Court.

In a second appeal to the Court, Phillips’ attorneys repeated a similar argument. “At issue here is whether Phillips may decline requests for wedding cakes that celebrate marriages in conflict with his religious beliefs. The First Amendment guarantees him that freedom because his wedding cakes, each one custom-made, are his artistic expression,” they said.

Their concluding argument centered on free speech and free exercise of religion principles: “Time and again, this Court has applied the First Amendment to pave the way for people with diverging views on core issues to live together. It should do so again in this case. Robust religious and expressive freedoms advance pluralism, protect other civil liberties, and promote true tolerance and civility. These freedoms benefit everyone, no matter their beliefs about same-sex marriage.”

On October 23, the Colorado Rights Commission filed its own brief with the Court where it presented a different question: "Colorado’s Anti-Discrimination Act forbids businesses engaged in sales to the public from denying service because of a customer’s sexual orientation. The question presented is whether the First Amendment grants a retail bakery the right to violate this equals service requirement by refusing to sell a wedding cake of any kind to any same-sex couple.”

The state believes the core issue in the case goes beyond expressive free speech. “Everyone agrees that the government cannot force people or entities to ‘speak,’” it says, citing previous cases that allowed school children to forgo saying the Pledge of Allegiance and the right of the free press to deny publishing political commentary.

“But those scenarios are nothing like the circumstances here, in which a state law has merely prohibited discriminatory denials of service by businesses open to the public. If a retail bakery will offer a white, three-tiered cake to one customer, it has no constitutional right to refuse to sell the same cake to the next customer because he happens to be African-American, Jewish, or gay,” it argues.

“Phillips demands respect for his religious beliefs, and that respect is secured by the Constitution. But under that same Constitution, a religious belief is no justification for a State—or a business open to the general public—to treat a class of people as inferior simply because of who they are,” the state concludes.

There’s no shortage of attention in the case among legal scholars and interest group, as more than 50 briefs have been filed with the Court as of late October. The Justice Department has filed a brief supporting Phillips and is expected to argue its own case in front of the Justices on December 6, 2017.

Scott Bomboy is the editor in chief of the National Constitution Center.