WASHINGTON D.C. – The now famous Masterpiece Cakeshop case is set to begin its hearing Tuesday in the Supreme Court of the United States (SCOTUS). The case (Masterpiece Cakeshop, Ltd., et, al. v. Colorado Civil Rights Commission, et. al) pits a cake baker against the state of Colorado.The story has been closely followed by the media for several years as it brings into question the limits and the scope of religious freedom in the public sphere.In 2012, David Mullins and Charlie Craig walked into the Lakewood-based Masterpiece Cakeshop to order a cake for their wedding. Because this happened prior to the 2015 Supreme Court ruling that legalized same-sex marriage, the couple was planning on marrying in Massachusetts, but celebrating with family and friends in their home state of Colorado.
Masterpiece Cakeshop owner and baker Jack Phillips refused to take their business, because making the cake would violate his religious beliefs. Phillips is a devout Christian, who closes his shop on Sunday and believes marriage should only be between a man and woman.
In a recent New York Times article, Philips recalls telling Mullins and Craig: “I’ll make you birthday cakes, shower cakes, cookies, brownies. I just can’t make a cake for a same-sex marriage ceremony.”
In the same article, Mullins described his response as “being stunned,” “feeling degraded,” and “mortified.”
Mullins and Craig went directly to the Colorado Civil Rights Division and filed charges. This resulted in the case Craig v. Masterpiece Cakeshop. In 2013, administration law judge Robert Spencer ruled in favor of the couple, and the Colorado Civil Rights Commission affirmed the ruling.
According to the judge and the commission, Phillips had violated Colorado’s anti-discrimination laws, which state in part:
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 … (24-34-601)
Places of public accommodation are defined as “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public.” Masterpiece Cakeshop falls into that category.
Judge Spencer said at the time, “At first blush, it may seem reasonable that a private business should be able to refuse service to anyone it chooses This view, however, fails to take into account the cost to society and the hurt caused to persons who are denied service simply because of who they are.”
Phillips was ordered to make them a cake, and to change his policy. He refused to comply and opted to stop making wedding cakes altogether. With the help of the Alliance Defending Freedom (ADF), he decided to challenge the decision. ADF is a conservative Christian advocacy group known for its anti-LGBT actions and rhetoric, and is listed as a hate group by the Southern Poverty Law Center.
The American Civil Liberties Union (ACLU) stepped in on behalf of Craig and Mullins. The case became Masterpiece Cakeshop et. al. v. Colorado Civil Rights Commission et. al.
Phillips and his attorneys argue that the commission and the anti-discrimination laws are putting a substantial burden on his religious freedom rights, as well as violating his First Amendment rights to free expression as an artist. Phillips believes that he is more than a baker. He is cake artist, and his work and beliefs are integrated into his process.
“It’s more than just a cake,” he told the New York Times in 2017.
In his defense, the ADF has said, “In America, artistic expression shouldn’t be subject to government control. Jack’s case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, is an example of what happens when the government gets into the ideology business and begins to punish private citizens if they don’t share and celebrate the same beliefs as the state.”
Phillips believes that the cake is a centerpiece to the marriage celebration and a visual expression of it. In the final brief to the Supreme Court, ADF states, “The commission ordered Jack to celebrate what his faith prohibits or to stop doing the work he loves.”
The case first went through the Colorado court system, ending with the Colorado Court of Appeals. Each time, the next judge’s ruling affirmed the original decision. In July 2016, ADF and Phillips filed a writ of certiorari with the Supreme Court, who granted the petition the following June.
The question that they posed to the court was “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.”
The case has changed faces. It is no longer centered on one citizen violating the rights of another, although that is still the precipitous. The case now is focused on a state’s violation of a citizen’s religious rights and free speech.
In fact, the plaintiffs appear to be predominantly focused on free speech. The cake, as Phillips believes, is his art and expression, which cannot and should not be restricted by the government. They maintain that he did not discriminate against the couple as people, but simply would not make a piece of art that expressed or celebrated something that is counter to his religious beliefs.The ACLU, Mullins, Craig and the state have countered that there has been no violation of rights. The case is not about restricting someone’s artistic expression, but about conduct. They said, “no reasonable observer would understand the company’s provision of a cake to a gay couple as an expression of its approval of the customer’s marriage.”
Mullins told the New York Times, “Our story is about us being turned away and discriminated against by a public business.”
In a recent post, the ACLU cited a number of historical cases in which religion was used to justify discrimination against marginalized people. The article concludes:
“People have deeply held beliefs about all kinds of things. If those beliefs gave anyone the right to discriminate, a tailor shop could refuse to alter a business suit for women, or a bus company could refuse to drive people of different faiths to work. If the bakery has a constitutional right to discriminate, then today it’s Dave and Charlie, tomorrow it could be you, your family members, your friends and your loved ones. Any of us could be turned away simply because of who we are.”
The Masterpiece case has quickly become one of the most talked-about SCOTUS cases of the last few years, and has attracted interest not just from advocacy groups and the media, but also from the Trump administration. In September, Attorney General Jeff Sessions submitted an amicus brief for the petitioners, ADF and Phillips.
Interestingly, several months earlier Sessions was reportedly a keynote speaker at an ADF summit addressing religious liberty. The event was allegedly off limits to the press.
The Department of Justice brief supporting Phillips’ position was filed with SCOTUS two months after that summit meeting. The brief concludes that the “the state has not advanced a sufficient state interest to override petitioners’ weighty First Amendment interest in declining to create the expression at issue here.”
And, it also argues in part that the denial of service happened before the state recognized same-sex marriages and, therefore, there was no discrimination and the commission was wrong.
Sessions involvement is just another indicator of the Trump administration’s policy direction, and has earned, as one might expect, much backlash.
The fact that the Supreme Court even decided to hear the case at all may be another indicator of policy shifts. As noted on SCOTUSblog, the court has routinely rejected similar cases in the past. Analysts writing at the SCOTUSblog site are now intrigued to learn why the highest court has had a “change of heart.”
The Masterpiece Cakeshop case is poised to become historic. The case’s implications are undoubtedly far-reaching, and the outcome could negatively affect marginalized groups of all kinds. That potential is very real. The issues in the case dive right into the muddled center of a society grappling desperately with its seemingly growing and more visible cultural and religious diversity.
Oral arguments start Dec. 5.
The Wild Hunt will be following the case and update as needed.