A baker’s refusal to serve a gay couple gives right-wing forces an opening to eviscerate nondiscrimination laws and create a modern day Jim Crow.
Today, the Supreme Court will hear oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Masterpiece Cakeshop is one of a number of recent cases in which owners of small businesses open to the public–florists, bakers, decorators, or caterers, for example–have refused service to gay couples on the grounds that same-sex marriage violates the business owners’ religious beliefs.
It is a major civil rights case, with implications far beyond cake, the LGBTQ community, and same-sex marriage. Allowing individuals to use religion (or free speech, more on that in a minute) as an excuse for noncompliance with nondiscrimination laws opens an enormous donut hole in equality, threatening a new version of segregated lunch counters and second class citizenship.
What follows is a brief introduction to some of the legal questions at issue in Masterpiece Cakeshop.
Towleroad will follow up with summaries of the arguments and more analysis in the coming days.
In 2012, two gay men, Charlie Craig and David Mullins, visited a bakery, Masterpiece Cakeshop, in the greater Denver area. Colorado still didn’t allow openly gay persons to marry, but the couple planned to marry in an equality state and celebrate among their friends and family back home. Jack Phillips, the owner of Masterpiece, refused to do business with them, citing his religious beliefs. “I am a Christian,” he said, “and I don’t believe in same-sex marriage.” Notably, as we learned from various court filings, Mr. Phillips doesn’t design any cakes that conflict with particular interpretation of religious scripture: his cakes do not contain alcohol, he won’t design a Halloween cake, and he once refused to design a cake to celebrate a divorce. He referred Charlie and David to another bakery.
Charlie and David approached the Colorado Civil Rights Commission, the state agency that, among other things, allows individuals who have been discriminated against to enforce their rights under Colorado’s public accommodations law. That law prohibits businesses that are open to the public, like Masterpiece, from discriminating on the basis of race, religion, ethnicity, country of origin, and sexual orientation. Charlie and David filed a claim with the Commission against Masterpiece for violating that law: Masterpiece had refused to serve a gay couple specifically because they are gay. That is black-letter discrimination of a protected group. The Commission, and then every Colorado state court after that, sided with Charlie and David.
Masterpiece Cakeshop is a pivotal case. The briefs from the parties involved are just two among hundreds of amici (or “friends of the court”) who are interested in the outcome. Notably, the Trump Administration has gotten involved on the side of the baker.
Phillips and Masterpiece make an argument that we’ve seen before, especially if you followed Towleroad’s coverage of same-sex marriage cases. Colorado’s public accommodations law is unconstitutional, Masterpiece argues, because, as a law that impinges on fundamental liberties like the free exercise of religion and free speech, it has to pass so-called strict scrutiny. Strict scrutiny looks at laws with an exacting eye, requiring the state to have a compelling interest to act and to have a law that is narrowly tailored to meet that objective. Masterpiece argues that public accommodations laws fail that test. The state cannot have so compelling an interest as to (a) force a deeply religious man to violate his beliefs to make a cake (the free exercise of religion part), or (b) force an artist to express himself against his will (the free speech part).
There are too many problems with this argument to list in one post. But I’ll try.
I have no doubt that artistry goes into the making of a cake. Indeed, Masterpiece cakes, like many specialty cakes out there, are beautiful. But cakes aren’t speech; if they are, everything is. An amicus brief filed on behalf of a group of bakers argues as much. Although it is true that the First Amendment protects expression beyond words, cakes do not express the baker’s artistic expression. They are, as the bakers argue, meant to be eaten, not enjoyed as art.
Plus, no reasonable person could look at this situation and think that the person who made the cake is endorsing, supporting, or approving of the underlying reason for buying the cake. It’s a cake. Whether that cake is going to be eaten at a child’s birthday party, a same-sex wedding, or after an orgy, no one looks at the cake and thinks anything about the cake designer other than his ability to make a tasty cake. This is conduct, not speech.
The free exercise of religion argument also fails. Mr. Phillips is free to practice his narrow, bigoted version of Christianity how he sees fit, as long as his observance does not harm others. He has chosen to take advantage of the public sphere for his own benefit: he earns a good living by opening a store to the public, taking their money, and baking cakes. If he wants to do that, he has to comply with certain laws, values, and norms that his state and country have concluded go along with participation in public life. If he cannot comply with those laws, he should close his shop.
So what is more important to him: practicing bigoted Christianity or making money? Plus, in a previous case, the Supreme Court has held that the free exercise right embodied in the First Amendment “does not include a right to disobey neutral and generally applicable laws, including non-discrimination laws.”
It is also wrong to argue that public accommodations laws require strict scrutiny. Strict scrutiny is reserved for laws that impinge basic rights, like laws that treat races differently. Public accommodations laws are about public conduct, not speech or religion. A catering hall cannot refuse to rent a space to someone just because she’s black or Latinx. A florist cannot refuse to make arrangements for someone just because she’s black and marrying a white person. This is conduct, not speech, and, therefore, not protected by any fundamental civil right.
The only way it could is if the Supreme Court changes the current law. There are likely 4 votes for that, from Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch. Justice Gorsuch has been itching for a case like this. His absurdly narrow view of marriage rights suggests that he will eagerly carve out an enormous hole in Obergefell every chance he gets.
Other arguments will come up at tomorrow’s oral argument. Keep an eye on Justice Kennedy, as usual. And watch for Chief Justice Roberts to choreograph reactionary beliefs. Follow Towleroad’s legal analyses over the coming days for more on Masterpiece Cakeshop.