Does compelling a business owner to engage in artistic expression which goes against his deeply-held religious beliefs in accordance with Colorado’s public accommodation anti-discrimination law violate either the Free Speech Clause or the Free Exercise Clause of the First Amendment?
This case asks the Supreme Court to balance public accommodation anti-discrimination laws and First Amendment rights. Colorado’s Anti-Discrimination Act (“CADA”) prohibits commercial businesses from denying service to patrons based on protected characteristics, including sexual orientation. Masterpiece Cakeshop and its owner Jack Phillips contend that CADA violates their First Amendment rights to free artistic expression and religious belief. The Colorado Civil Rights Commission (“CCRC”) and Charlie Craig and David Mullins counter that Masterpiece Cakeshop’s First Amendment rights are not at issue, as CADA applies in all cases of commercial discrimination, and that merely invoking such rights should not exempt Petitioner from complying with the anti-discrimination law. The outcome of this case has heavy implications for LGBTQ rights, creative expression, and religious freedom.
Questions as Framed for the Court by the Parties
Whether applying Colorado’s public-accommodation law to compel artists to create expression that violates their sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.
In July 2012, Respondents Charlie Craig and David Mullins visited Petitioner Masterpiece Cakeshop, a Colorado bakery, to request that its owner, Petitioner Jack Phillips, create a cake for their same-sex wedding. Craig v. Masterpiece Cakeshop, Inc. at 1. Phillips declined their request, explaining that he would not make a custom wedding cake for them because of his Christian beliefs, but that he would be happy to sell them any other baked goods. Id. at 2. Phillips is a practicing Christian, and has been so for approximately 35 years. Id. Craig’s mother called Phillips, and he informed her that Masterpiece Cakeshop did not create cakes for same-sex weddings due to his Christian beliefs and because the state of Colorado did not legalize same-sex marriage. Id.
Craig and Mullins filed a claim against Masterpiece Cakeshop and Phillips (collectively “Masterpiece Cakeshop”) with Respondent Colorado Civil Rights Commission (“CCRC”), alleging that the bakery discriminated against them due to their sexual orientation in violation of the Colorado Anti-Discrimination Act (“CADA”). Id. at 3. Under CADA, it is discriminatory to deny anyone “the full and equal enjoyment of the foods and services . . . of a place of public accommodation” based on protected characteristics, such as sexual orientation. Brief for Respondent, Colorado Civil Rights Commission at 4. A “place of public accommodation” includes any “place of business engaged in any sales to the public.” Id. After investigating, the Colorado Civil Rights Division concluded that Craig and Mullins’s claims were supported by probable cause. Craig at 3. Based on that finding, Craig and Mullins, as well as the Colorado Attorney General’s Office, filed with the Office of Administrative Courts alleging that Masterpiece Cakeshop violated CADA. Id.; Brief for Respondents, Craig & Mullins at 3. The Administrative Law Judge (“ALJ”) found for Craig and Mullins. Craig at 3.
Masterpiece Cakeshop appealed the ALJ’s decision to the CCRC. See Brief for Petitioner, Masterpiece Cakeshop, Ltd. and Jack Phillips at 12. The CCRC affirmed the ALJ’s holding and ordered Masterpiece Cakeshop to (1) take remedial measures, such as making adjustments to company policies and staff trainings, to ensure compliance with CADA, and (2) file compliance reports for the next two years documenting the remedial measures taken and describing any patrons denied service. Craig at 4.
Masterpiece Cakeshop appealed the Commission’s order to the Colorado Court of Appeals in 2015. The court rejected Masterpiece Cakeshop’s contention that its refusal to make a wedding cake for Craig and Mullins was because of its religious opposition to same-sex marriage, not because of a bias against the couple’s sexual orientation, as “but for their sexual orientation, Craig and Mullins would not have sought to enter into a same-sex marriage.” Id. at 12, 17.
The court also rejected Masterpiece Cakeshop’s contention that the Commission violated its First Amendment rights by compelling it to create cakes for same-sex weddings and, by implication, convey celebratory messages about same-sex marriage. Id. at 24. While the court acknowledged that the First Amendment’s protections barred government from requiring speech, it found that these protections only extended to “inherently expressive” conduct. Id. The court concluded that, if Masterpiece Cakeshop were to sell wedding cakes to all its customers equally, it would not inherently express any message regarding same-sex weddings, as it would merely be abiding Colorado law. Id. at 28, 33–34.
Finally, the court rejected Masterpiece Cakeshop's contention that CADA infringed on its Free Exercise rights. Id. at 48. The court found that CADA was neutral, as it banned discrimination based on sexual orientation regardless of motivation. Id. at 51. The court also found that CADA was generally applicable, as it regulated both religiously-motivated and secular conduct. Id. at 49.
The Colorado Supreme Court denied Masterpiece Cakeshop's request for further review. Masterpiece Cakeshop at 14. The United States Supreme Court granted Masterpiece Cakeshop certiorari on June 26, 2017. Id.
APPLYING PUBLIC ACCOMMODATION LAW
Masterpiece Cakeshop argues that the CCRC’s application of CADA violates its First Amendment rights by restricting their free speech and free exercise of religion. Brief for Petitioner, Masterpiece Cakeshop, Ltd. and Jack Phillips at 16–17, 38. According to Masterpiece Cakeshop, the Supreme Court has held that states may not apply public accommodation laws, like CADA, when they interfere with free expression. Id. at 26. Therefore, Masterpiece Cakeshop contends that this case requires the Court to apply strict scrutiny review—which requires that a government regulation be narrowly tailored to serve a compelling government interest—rather than an ordinary application of public accommodation law. Id. at 48. Masterpiece Cakeshop then asserts that the CCRC’s application of CADA does not survive strict scrutiny review because none of the CCRC’s interests—(1) ensuring equal access to cake artists, (2) preventing adverse economic effects from discrimination, and (3) protecting same-sex couples’ dignity—are compelling. Id. at 49. Masterpiece Cakeshop further argues that the CCRC’s application of CADA is not narrowly tailored because Craig and Mullins were able to access other cake artists. Id. at 50.
Masterpiece Cakeshop also notes that even if the Court does not use strict scrutiny review, the Court should still rule the shop’s decisions as protected by the First Amendment because the shop refused to sell products that “celebrate any form of marriage other than between a husband and a wife” rather than refusing service to homosexuals. Brief for Petitioner at 9, 51. Masterpiece Cakeshop asserts it “would be happy to” sell its products to Craig, Mullins, or other homosexuals for events other than same-sex weddings. Id. at 51.
The CCRC counters that this case requires the Supreme Court to apply an ordinary, neutral and generally applicable public accommodation law to a business’s sale of goods and services to the public. Brief for Respondent, Charlie Craig and David Mullins (“Craig & Mullins”) at 13; Brief for Respondent, Colorado Civil Rights Commission (“CCRC”) at 19. The CCRC notes that the Supreme Court has upheld laws, like CADA, that regulate commercial conduct that discriminates on the basis of protected characteristics. Craig & Mullins at 14; CCRC at 22. The CCRC contends that strict scrutiny review is not applicable in this case. CCRC at 55. Nonetheless, the CCRC contends, CADA would survive strict scrutiny review because it is narrowly tailored to achieve compelling government interests—preventing discrimination and unequal treatment based on citizens’ protected characteristics. Id.
The CCRC contends that CADA regulates only the conduct of businesses that serve the public by prohibiting the refusal of service based on a customer’s protected characteristics. Craig & Mullins at 15–16; CCRC at 21. CADA, according to the CCRC, is indifferent to the type of product or service that a business offers. Craig & Mullins at 13; CCRC at 22. The CCRC asserts that Masterpiece Cakeshop violated CADA not because of what its cakes expressed or did not express, but because Masterpiece Cakeshop refused to serve an entire class of people merely because of their protected characteristics. Craig & Mullins at 14; CCRC at 20. According to the CCRC, Masterpiece Cakeshop would sell wedding cakes to heterosexual couples but not to homosexual couples. Craig & Mullins at 14; CCRC at 23–24.
CUSTOM-MADE CAKES AND CREATIVE EXPRESSION
Masterpiece Cakeshop argues that the CCRC’s application of CADA violates its Free Speech rights, which protect its expression and expressive conduct. Brief for Petitioner at 16–17. Masterpiece Cakeshop contends that the category of “protected artistic expression” encompasses its custom wedding cakes because these specialty cakes are used to communicate specific messages. Id. at 18. According to Masterpiece Cakeshop, the cakes declare that the wedding “should be celebrated”—a message that Masterpiece Cakeshop “could not in good conscience communicate.” Id. at 19–21. Alternatively, Masterpiece Cakeshop asserts that even if creating custom wedding cakes is not itself artistic expression, it is at least “expressive conduct” meriting protection. Id. at 23. According to Masterpiece Cakeshop, creating custom wedding cakes satisfies the expressive conduct test because a viewer would recognize that Masterpiece Cakeshop’s custom wedding cakes “celebrate and express support for” same-sex marriages. Id. at 23–24.
Next, Masterpiece Cakeshop argues that the CCRC violates the compelled-speech doctrine, which protects an artist’s discretion in expressing or not expressing a particular idea by forcing him to convey an idea he finds objectionable through his art. Brief for Petitioner at 27–28. Masterpiece Cakeshop contends that the CCRC unconstitutionally regulated Masterpiece Cakeshop’s artistic expression by “mandat[ing] orthodoxy of expression, not anti-discrimination.” Id. at 28.
Finally, Masterpiece Cakeshop asserts that the CCRC’s application of CADA engages in impermissible content-based and viewpoint-based discrimination by forcing Masterpiece Cakeshop to engage in expression it otherwise would not engage in as well as by forcing Masterpiece Cakeshop to convey endorsement of same-sex marriages—a viewpoint at odds with its fundamental beliefs. Brief for Petitioner at 35–36. Thus, Masterpiece Cakeshop argues that because the CCRC’s application of CADA violates its Free Speech rights, the Supreme Court must apply strict scrutiny review. Id. at 48–49. Masterpiece Cakeshop contends that CADA fails strict scrutiny. Id.
The CCRC counters that whether Masterpiece Cakeshop’s cakes constitute speech is immaterial in this case because CADA regulates only non-expressive conduct by prohibiting discrimination in the commercial marketplace. Craig & Mullins at 13–14; CCRC at 26. The CCRC notes that the Supreme Court has invalidated applications of public accommodation laws for violating the First Amendment in only two cases. Craig & Mullins at 30–31; CCRC at 27–31. Both cases, the CCRC contends, dealt with private associations rather than commercial businesses offering goods and services to the public at large. Craig & Mullins at 30–31; CCRC at 27–31. The CCRC asserts that the prohibition against discrimination affects Masterpiece Cakeshop’s expression only incidentally. Craig & Mullins at 20; CCRC at 44. Thus, according to the CCRC, the Supreme Court will apply the deferential review standard set forth in United States v. O’Brien, which the Court has routinely used to uphold regulations. Craig & Mullins at 21–23; CCRC at 44–45. The CCRC argues that CADA’s prohibition of discrimination satisfies the O’Brien review standard because it regulates conduct irrespective of what it expresses and because it is “within the constitutional power of the Government.” Craig & Mullins at 21; CCRC at 45.
The CCRC contends that the application of CADA does not implicate the compelled speech doctrine because CADA regulates conduct and its effect on speech is merely incidental. Craig & Mullins at 28–30; CCRC at 32. The CCRC notes that CADA’s regulation of discrimination only slightly affects Masterpiece Cakeshop’s ability to freely express itself, which the Supreme Court has noted is permissible in previous Free Speech cases. Craig & Mullins at 28–30.
The CCRC asserts that CADA does not regulate the content of viewpoints of Masterpiece Cakeshop’s speech. Craig & Mullins at 23–24; CCRC at 47–48. Indeed, according to the CCRC, CADA does not exclusively apply to certain “topics” of expression, but rather it applies to refusing service to customers based on their protected personal characteristics. Craig & Mullins at 24; CCRC at 47–48. Additionally, the CCRC notes that CADA applies equally and neutrally to any discrimination on the basis of protected characteristics, independent of the identity and beliefs of the commercial business. Craig & Mullins at 25–27; CCRC at 48–49.
FREE EXERCISE AND HYBRID RIGHTS
Masterpiece Cakeshop argues that the CCRC’s application of CADA violates its Free Exercise rights, which protect its ability to freely practice religion. Brief for Petitioner at 38. Masterpiece Cakeshop contends that making a custom wedding cake and participating in same-sex marriages, which retain a “deep[ly] religious meaning” to Masterpiece Cakeshop, burden its religious beliefs and practices. Id. According to Masterpiece Cakeshop, CADA is neither neutral nor generally applicable because it protects supporters of same-sex marriage and punishes opponents. Id. at 38–39. Masterpiece Cakeshop asserts that the CCRC would permit cake artists to refuse an order requesting an offensive or disparaging cake, but would not permit Masterpiece Cakeshop and similarly situated cake artists to refuse an order requesting a cake endorsing same-sex marriage. Id. at 40. This differential treatment, Masterpiece Cakeshop argues, not only unconstitutionally disfavors Masterpiece Cakeshop’s religious beliefs and practice, but also allows the government to decide what is and what is not offensive. Id.
Furthermore, Masterpiece Cakeshop contends that the CCRC violated the general applicability requirement because the CCRC’s application of CADA is both selective and underinclusive. Brief for Petitioner at 44–45. According to Masterpiece Cakeshop, CADA is underinclusive because it does not prevent dignitary harm to citizens, but rather inflicts dignitary harm on religious artists like Jack Phillips. Id. at 44. Masterpiece Cakeshop asserts that the CCRC selectively applied CADA by targeting artists who religiously object to same-sex marriages while protecting those who do not object. Id. at 45. For those reasons, Masterpiece Cakeshop argues that the application of CADA violates the Free Exercise Clause and triggers strict scrutiny review, which this application of CADA does not satisfy. Id. at 48–49.
Finally, in the alternative, Masterpiece Cakeshop asserts that the CCRC’s application of CADA infringed upon both its Free Speech interest in artistic expression and its free exercise interest in freely practicing religion. Brief for Petitioner at 46–47. Masterpiece Cakeshop contends that this “hybrid” connection of Free Exercise and Free Speech rights triggers strict scrutiny review, even if either independent claim does not alone trigger strict scrutiny review. Id.
The CCRC counters that Masterpiece Cakeshop’s Free Exercise rights do not exempt it from complying with CADA—a “valid and neutral law of general applicability.” Craig & Mullins at 50; CCRC at 52. According to the CCRC, Colorado may constitutionally prohibit discrimination in public accommodation and Jack Phillips’s religious beliefs, deeply held or otherwise, do not except Masterpiece Cakeshop from anti-discrimination laws such as CADA. CCRC at 50. The CCRC asserts that CADA is both neutral facially and as applied to Masterpiece Cakeshop, for CADA targets no religion and applies to a commercial business’s conduct regardless of the owner’s religious beliefs or the business’s goods and services. Craig & Mullins at 51-53; CCRC at 51–52.
The CCRC argues that Masterpiece Cakeshop seeks preferential treatment rather than equal treatment by asking the Supreme Court to grant it a “constitutional[ly] anamal[ous]” “private right to ignore” CADA’s prohibition against discrimination. CCRC at 52. The CCRC contends that the Free Exercise Clause does not entitle Masterpiece Cakeshop to that right. Id.
The CCRC asserts that Masterpiece Cakeshop’s hybrid rights claim fails because neither the Free Speech nor the Free Exercise claim insulates Masterpiece Cakeshop from its obligation to follow a public accommodation anti-discrimination law. Craig & Mullins at 55–56; CCRC at 54–55. The CCRC further argues that the Supreme Court has never applied a special analysis to hybrid situations and that accepting Masterpiece Cakeshop’s hybrid rights claim would contradict the Supreme Court’s precedent in Free Exercise jurisprudence. Craig & Mullins at 55–56; CCRC at 54–55.
BALANCING LGBTQ INTERESTS AND RELIGIOUS INTERESTS
Utah Republican State Senators (“Senators”), in support of Masterpiece Cakeshop, assert that upholding public accommodation laws like CADA would hinder the ability of state politicians to pass other laws benefitting and protecting the LGBTQ community. See Brief of Amici Curiae Utah Republican Senators, in Support of Petitioners at 23–24. The Senators contend that allowing public accommodation laws to compel wedding professionals—in spite of their religious beliefs—to serve LGBTQ couples would deter conservative states from enacting housing and employment protections for LGBTQ citizens in fear that such legislation would be used to punish religious persons who object to same-sex marriage. Id.
Christian Colleges and Universities (“CCCU”) and other religious colleges and universities, in support of Masterpiece Cakeshop, contend that a finding for CCRC would threaten their ability to maintain religious-based policies that conflict with non-religious values, such as their policies against premarital sex. Brief of Amici Curiae CCCU et al., in Support of Petitioners at 19. Similarly, American College of Pediatricians et al. argues that such a ruling would be used as precedent to require physicians to perform abortions, regardless of their religious or moral objections. Brief of Amici Curiae American College of Pediatricians et al., in Support of Petitioners at 21, 23.
Twenty-one States and the District of Columbia (collectively the “States”), in support of CCRC, counter that the government has a compelling interest in protecting the rights of LGBTQ citizens from invidious discrimination, especially given the history of LGBTQ discrimination in the United States. See Brief of Amici Curiae Massachusetts et al. in Support of Respondents at 5, 13. The States assert that public accommodation laws are necessary to because, without such laws, LGBTQ customers would be subjected to separate and unequal treatment. Id. at 11.
Ilan H. Meyer and other social scientists (“Meyer et al.”), in support of the CCRC, explain that discriminatory treatment greatly damage the health and wellbeing of LGBTQ citizens. Brief of Amici Curiae, Ilan H. Meyer et al., in Support of Respondents at 19–20. Meyer et al. assert that, if states do not protect LGBTQ citizens from being denied public accommodations, LGBTQ citizens will have to spend more money and energy to obtain the same goods and services as other citizens. Id. at 19. Meyer et al. also argues that, without public accommodation laws, LGBTQ couples would be forced to reveal their sexual orientation to wedding professionals in advance of service, or else risk being turned away. Id. These experiences, they argue, would inflict dignitary harms on LGBTQ persons and generate LGBTQ stigma, which would lead to higher risks of physical and mental health issues in the LGBTQ community. Id. at 19, 24.
ECONOMIC AND COMMERCIAL CONCERNS
A group of law and economics scholars (“Law and Economics Scholars”), in support of Masterpiece Cakeshop, argue that requiring businesses to comply with public accommodation laws would damage social welfare by interfering with the free market. Brief of Amici Curiae Law and Economics Scholars, in Support of Petitioners at 6. The Law and Economics Scholars contend that free markets mitigate the negative effects of discriminatory businesses by offering consumers better alternatives. Id. at 9. The Law and Economics Scholars also assert that free market actors self-correct discriminatory practices by forcing discriminatory businesses to take on financial costs, such as lost sales and social costs, such as abusive threats. Id. at 17–19. Eventually, the Law and Economics Scholars maintain, prejudiced actors will be eradicated from the market by business owners who are interested in maximizing customer profits. Id. at 9.
Religious groups in support of Masterpiece Cakeshop, contend that public accommodation laws drive religious persons away from entering into business, as being in business often forces them to take actions to go against their religious beliefs. Brief of Amici Curiae Ethics & Religious Liberty Commission et al., in Support of Petitioners at 21. Public Advocate of the United States et al. similarly asserts that upholding public accommodation laws, like CADA, allow people to legally oppress Christian business owners by forcing them to choose between their businesses and their anti-same-sex marriage beliefs. Brief of Amici Curiae Public Advocate of the United States et al., in Support of Petitioners at 17.
Behavioral science and economics scholars (“Science and Economics Scholars”), in support of CCRC, counter that free market actors do not act rationally, so they will not self-correct. Brief of Amici Curiae Scholars of Behavioral Science and Economics, in Support of Respondents at 11. Rather, the Science and Economics Scholars assert that same-sex couples, particularly those who live in non-LGBTQ-friendly areas of the country, would have to suffer extra effort and expenses to find businesses that will serve them. Id. at 11.
Main Street Alliance et al., in support of CCRC, asserts that allowing First Amendment exemptions from public accommodation laws would open the door to a wide range of discriminatory business practices. Brief of Amici Curiae Main Street Alliance et al., in Support of Respondents at 14. Main Street Alliance et al. warns that any business that considers an aspect of its profession to be expressive—including any business that provides custom goods—would qualify under the proposed exemption to deny services to protected classes. Id. at 18. Main Street Alliance et al. argues that this exemption would eventually nullify public accommodation laws, as the vast majority of small businesses would decline—on the grounds of freedom of expression—customers whose opinions they did not share. Id. at 21.
The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.
- Garrett Epps, When Beliefs and Identities Clash in Court, The Atlantic (Sept. 18, 2017).
- Adam Liptak, Where to Draw Line on Free Speech? Wedding Cake Case Vexes Lawyers, New York Times (Nov. 6, 2017).
- Christianna Silva, The Masterpiece Cake Shop Supreme Court Case Doesn’t Really Have Anything to do With Cake, Newsweek (Nov. 1, 2017).
- Richard Wolf, Free Speech v. Same-Sex Marriage Case Floods High Court, USA Today (Nov. 2, 2017).