Let Them Eat Cake

The U.S. Supreme Court Will Decide If A Bakery Can Use Religion As An Excuse To Deny Services To Same-Sex Couples

In 2012, Charlie Craig and David Mullins faced a double serving of discrimination when they were ready to get married: They couldn’t marry in their home state because Colorado did not yet allow marriage equality, and a bakery in Denver’s suburbs refused to make them a wedding cake.

The U.S. Supreme Court rectified the first act of discrimination through a 2015 opinion that established marriage equality nationwide. This fall, the high court has the opportunity to right the second wrong when it hears arguments in the case Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission.

The case began when Craig and Mullins were planning their wedding in July 2012. They intended to travel to Massachusetts – one of the first states where same-sex couples could marry – for the wedding ceremony, then return to Colorado for a wedding reception with friends and family.

The couple approached Masterpiece Cakeshop in Lakewood to bake a wedding cake for the reception. But Masterpiece owner Jack Phillips refused to make the couple’s cake, citing his religious objection to marriage for same-sex couples.

“Phillips’ religious conviction compels him to create cakes celebrating only marriages that are consistent with his understanding of God’s design” – which excludes same-sex unions, according to the petition filed with the Supreme Court on behalf of Masterpiece by attorneys at the Religious Right legal firm Alliance Defending Freedom (ADF).

Craig and Mullins filed complaints with the Colorado Civil Rights Division and the state’s Office of Administrative Courts, alleging Masterpiece – a place of public accommodation – had violated the Colorado Anti-Discrimination Act (CADA) by discriminating against them on the basis of their sexual orientation.

The Colorado Civil Rights Division, an administrative law judge and the Colorado Civil Rights Commission all agreed that Masterpiece Cakeshop had discriminated against Craig and Mullins. The commission issued a cease and desist order to Mas­terpiece and required the bakery to alter its policies and undergo staff training to ensure compliance with Colorado’s anti-discrimination laws. Masterpiece also was required to file quarterly compliance reports with the Colorado Civil Rights Division to confirm the remedial actions were taken and to document any customers who were denied service and why.

Masterpiece appealed the commission’s opinion to the Colorado Court of Appeals. The bakery claimed its refusal to bake the wedding cake was not in opposition to Craig’s and Mullins’ sexual orientation, but in opposition to their marriage. Masterpiece said it would have served them any other baked item, just not a wedding cake.

The Colorado Court of Appeals determined Masterpiece’s argument was a matter of splitting hairs: “We conclude that the act of same-sex marriage is closely correlated to Craig’s and Mullins’ sexual orientation, and therefore, the [administrative law judge] did not err when he found that Masterpiece’s refusal to create a wedding cake for Craig and Mullins was ‘because of’ their sexual orientation, in violation of CADA.”

The court’s order referenced a New Mexico Supreme Court ruling in a similar case, Elane Photography LLC v. Willock. The New Mexico high court in 2013 had concluded that an Albuquerque photography studio could not cite religious beliefs about same-sex unions as justification to refuse to photograph the wedding of Vanessa Willock and her partner. The court ruled that marriage between same-sex couples is “conduct that is inextricably tied to sexual orientation.” Therefore, the photographer’s refusal to photograph the couple’s wedding amounts to  discrimination on the basis of sexual orientation.

The Colorado Court of Appeals also rejected Masterpiece’s argument that creating a cake for a same-sex couple’s wedding violated the baker’s right to freedom of expression and religion under the First Amendment.

“We conclude that the act of designing and selling a wedding cake to all customers free of discrimination does not convey a celebratory message about same-sex weddings likely to be understood by those who view it,” the court wrote. “We further conclude that, to the extent that the public infers from a Masterpiece wedding cake a message celebrating same-sex marriage, that message is more likely to be attributed to the customer than to Masterpiece.

“The public has no way of knowing the reasons supporting Masterpiece’s decision to serve or decline to serve a same-sex couple,” the court added. “Someone observing that a commercial bakery created a wedding cake for a straight couple or that it did not create one for a gay couple would have no way of deciphering whether the bakery’s conduct took place because of its views on same-sex marriage or for some other reason.”

Americans United lauded both the Colorado Court of Appeals decision and the subsequent refusal by the Colorado Supreme Court to hear Masterpiece’s appeal – thereby upholding the lower court’s ruling.

“Religious freedom is an important constitutional principle, but it doesn’t guarantee businesses the right to deny people services and discriminate against them,” said Barry W. Lynn, AU’s executive director.

“Religious freedom must not be used to justify hate and bigotry,” added Alex J. Luchenitser, AU’s associate legal director. “Doing so demeans one of our most precious constitutional rights.”

AU had filed a friend-of-the-court brief with the appeals court in support of the couple. AU’s brief argued that the First Amendment does not excuse businesses from their obligation to treat all customers equally – even when the discrimination is motivated by religion.

“Antidiscrimination statutes like Colorado’s do not burden or restrain business owners’ symbolic speech,” AU wrote in the brief. “Neither the act of accepting or turning away customers, nor furnishing baked goods and other similar products to customers, is the kind of activity deemed worthy of symbolic-speech protection under existing First Amendment doctrine.”

After the Colorado Supreme Court refused to hear Masterpiece’s appeal, the bakery in July 2016 petitioned the U.S. Supreme Court to hear the case. The petition was received by a Sup­reme Court that was short one justice in the wake of Antonin Sca­lia’s death. The Senate’s refusal to consider then-president Barack Obama’s nominee for Scalia’s replacement during a presidential election year meant a protracted delay in bringing the court up to its full complement of nine justices. Given the significant delay in the high court’s acting on Masterpiece’s petition, court watchers speculated that the justices were likely divided on whether to hear the case and waited until Justice Neil Gorsuch was seated this spring to make a decision.

The high court didn’t agree to hear the case until June 26 – coincidentally, the two-year anniversary of the court’s Obergefell v. Hodges decision that legalized marriage for same-sex couples nationwide.

AU’s Lynn urged the high court to use the opportunity to affirm lower-court rulings that religion can’t be used to justify discrimination: “The owner of Masterpiece Cakeshop can’t treat some people like second-class citizens because of his religion. With the eyes of the nation and history watching, the Supreme Court now has the opportunity to join lower courts in affirming that religious freedom does not grant a business owner license to harm others.”

With several similar cases in the legal pipeline, it likely was only a matter of time before the Supreme Court agreed to review one of them. The high court previously declined to hear the appeal in the Elane Photography case, which had the effect of upholding the New Mexico Supreme Court’s opinion that the studio’s refusal to photograph a same-sex couple’s wedding was illegal discrimination.

Like Masterpiece Cakeshop, the photography business was represented by ADF – as is Arlene’s Flowers, a Washington state floral shop that also wants to discriminate against same-sex couples. The Washington Supreme Court earlier this year unanimously ruled that the florist had violated the state’s anti-discrimination laws by refusing to provide flowers for the wedding of Robert Ingersoll and Curt Freed. In rejecting the florist’s argument that her “artistic” services should be exempted from anti-discrimination laws, the court cited AU’s friend-of-the-court brief that such an arrangement would create an unworkable “two-tiered system” in which a “dime-store lunch counter would be required to serve interracial couples but an upscale bistro could turn them away.”

This July, ADF petitioned the U.S. Supreme Court to hear an appeal in State of Washington v. Arlene’s Flowers; at Church & State’s press time, the court had yet to convene its 2017-18 term and the justices had not yet acted on the petition.

In the meantime, ADF has launched a full-scale media blitz attempting to portray Phillips in a positive light, even as something of a victim. The group managed to get him and one of its attorneys on ABC’s popular talk show “The View,” in late June.  

“I believe the Bible clearly teaches marriage is between one man and one woman,” Phillips said on the program. “I’m not judging these two gay men who came in. I’m just trying to preserve my right as an artist to decide which artistic endeavors I’m going to do and which ones I’m not.”

When Paula Faris, a host on the show, asked Phillips if Jesus would have made the cake, Phillips replied, “Would Jesus have made the cake? I don’t believe he would have, because that would have contradicted the rest of the biblical teaching. I don’t believe that Jesus would have made the cake if he had been a baker.”

His response led to a spirited rejoinder from co-host Joy Behar, who asserted, “Come on – Jesus would have made the cake. You can believe the Bible and everything, but Jesus, that’s a deal breaker. Jesus is gonna make the cake.”

As evidenced by Phillips’ appearance on “The View,” ADF is relying heavily on a free-speech argument, asserting that Phillips is akin to artists and writers who get to decide what they will create. (The ADF routinely refers to Phillips as a “cake artist,” not a baker.)

But advocates on the other side counter that Phillips is nothing more than a business owner seeking the right to refuse service to an entire class of individuals. They say the situation is akin to the Jim Crow laws common in the South prior to the passage of federal civil rights laws. The real principle at stake here, they say, is not free speech but the nation’s commitment to eradicating discrimination.

Several columnists and newspapers have expressed great skepticism over Phillips’ argument. Typical of these was an editorial in The Boston Globe that ran on July 6.

“[T]he Supreme Court justices should recognize that the Masterpiece Cakeshop case is not about forcing speech, but about banning discriminatory conduct,” observed the newspaper. “The Colorado cakemaker should be free to worship as he pleases, but not to abrogate settled civil rights law under the guise of the First Amendment.”

Arguments have not yet been scheduled in the Masterpiece case; they are expected to occur in late fall. Americans United intends to file a friend-of-the-court brief in support of the Colorado Civil Rights Commission and the couple. AU will argue religious freedom is about fairness, and that it doesn’t give anyone the right to discriminate in the name of religion.

AU and allied organizations expressed disappointment that the Department of Justice (DOJ) on Sept. 7 filed a friend-of-the-court brief in support of Phillips. The brief relies heavily on Phillips’ free-speech argument and skirts his religious-freedom claims. But court watchers say a win for Phillips on free-speech grounds will inevitably lead to more claims from business owners that what they do is expressive, and thus they don’t have to serve certain people – whether the claim is based on religion or not.

Louise Melling, deputy legal counsel for the American Civil Liberties Union, which is representing Craig and Mullins, told The Washington Post she was taken aback by the DOJ filing.

“Even in an administration that has already made its hostility” toward the LGBTQ community clear, Melling said, “I find this nothing short of shocking.”

AU’s Lynn urged the Supreme Court to protect two essential American concepts: “Religious freedom – the right to believe or not as you see fit – is a fundamental American value. And finding a partner to love and to marry is a fundamental part of the American dream for many. Our country’s laws should provide everyone with access to both.”              

 

AU seeks to prevent religion from being used as an excuse to harm others through the Protect Thy Neighbor project. Learn more at www.protectthyneighbor.org.