When the Masterpiece Cakeshop v. Colorado Civil Rights Commission case reached the United States Supreme Court, it should have been a landmark case focusing on LGBT civil rights in places of public accommodations. Instead, it veered from the core issues.
It was decided by the Supreme Court not based on First Amendment rights, freedom of speech, freedom of religious rights, or equal rights for all, but on "hostility to religion," leaving the door open for more challenges. Here, Professor Erwin Chemerinsky takes us through the case, what it meant for the couple, and what it means for couples moving forward.
Meet the Expert
Erwin Chemerinsky is the Dean of Berkeley Law and the Jesse H. Choper Distinguished Professor of Law at the University of California, Berkeley. Dean Chemerinsky has written more than 250 law review articles, is a contributing writer for the Opinion section of the Los Angeles Times, and writes regular columns for the American Bar Association Journal. He frequently argues appellate cases, including in the United States Supreme Court.
The Cake Incident
In July of 2012, David Mullins and Charlie Craig were planning a wedding reception in Colorado following their marriage ceremony in Massachusetts. At the time, Colorado did not recognize same-sex marriage. Like most couples, they wanted a beautiful wedding cake. Charlie, his mom Deborah Munn and David went to see Jack Phillips, cake artist and owner of Masterpiece Cakeshop in Lakewood, Colorado. When Craig and Mullins asked Phillips about a cake for their wedding, Phillips declined by saying, "I'll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don't make cakes for same-sex weddings." The three left the shop without further discussion. Later, Craig's mother called Phillips to ask why he refused to provide a wedding cake. Per the Supreme Court's opinion, "Phillips explained that he does not create wedding cakes for same-sex marriages because of his religious opposition to same-sex marriage."
The Colorado Anti-Discrimination Act
Colorado’s Anti-Discrimination Act provides: “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.”
Trail of Legal Decisions Leading to the Supreme Court
Professor Chemerinsky makes an essential point to keep in mind about the order of events, "Phillips would design and bake a cake for opposite-sex couples, but not for same-sex couples, a form of discrimination that violated the law.”
- In September 2012, Craig and Mullins filed a discrimination complaint against Masterpiece Cakeshop, Ltd. and Jack Phillips.
- After the ACLU filed a complaint with the Colorado Civil Rights Division, an investigation is opened that finds other instances of Phillips turning customers away based on their sexual orientation.
- On December 6, 2013, Colorado Administrative Law Judge Robert N. Spencer ruled in the couple’s favor.
- On May 30, 2014, the Colorado Civil Rights Commission agreed that Phillips violated Colorado's public accommodations law that prohibits business establishments from discriminating, including on the basis of sexual orientation.
- Phillips appealed twice. On August 13, 2015, the Colorado Court of Appeals affirmed the commissions’ ruling against Masterpiece Cakeshop in favor of Craig and Mullins.
- Subsequently, on April 25, 2016, the Colorado Supreme Court denied review.
- On December 5, 2017, the case is argued before the United States Supreme Court.
Question Presented to the Supreme Court
“The question presented,” says Dean Chemerinsky, “states: ‘Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.’” In other words, "would it violate free exercise of religion or freedom of speech under the First Amendment to force Masterpiece Cakeshop to design and bake a cake for a same-sex wedding?"
Supreme Court Ruling
On June 4, 2018, the Supreme Court reversed the Colorado Civil Rights Commission's ruling and the Colorado Court of Appeals in a 7-2 decision. Justice Kennedy wrote for the Court finding that the Colorado Civil Rights Commission had expressed impermissible hostility to religion and thus violated the First Amendment's free exercise clause. The Court found that the Colorado Civil Rights Commission had displayed a lack of neutrality towards Phillips' religious beliefs and that as a result, the ruling against Phillips "must be invalidated." Only Justices Ruth Bader Ginsburg and Sonia Sotomayor dissented.
What the Ruling Means
According to Professor Chemerinsky, there were two questions presented in Masterpiece Cakeshop that were not resolved by the Supreme Court:
- Would requiring services violate the free speech clause of the First Amendment?
- Would requiring services be impermissible compelled speech in violation of the First Amendment?
Because the Supreme Court did not decide these key issues in the Masterpiece Cakeshop case, they will come up again. Consider this: Are all cake bakers, florists, photographers, dress and ring designers, event designers and others, considered artists expressing their right to free speech through their work and thus cannot be compelled to create? It is worth mentioning that cases are being placed on the Court docket from other states involving florists, photographers, stationery stores, and others who would not serve same-sex weddings. With any changes in the Court's composition, deciding the core issues may have a much more receptive audience.
Professor Chemerinsky summarizes:
“An inherent tension exists between liberty and equality. The application of all anti-discrimination laws infringes the freedom to discriminate. But for decades, the law has made the choice that ensuring equality is worth sacrificing the liberty to discriminate. Put in constitutional terms, ending discrimination is a compelling government interest. Enforcing anti-discrimination laws thus should not be seen as a violation of free exercise of religion or freedom of speech. Justice Kennedy could have written the opinion in Masterpiece Cakeshop, making it clear that businesses have no First Amendment right to discriminate against gays and lesbians. Unfortunately, he didn't, and it may be a long time before there is a majority of the Court willing to do so."