REVIEW: Masterpiece Cakeshop v. Colorado Civil Rights Commission

Compiled By Lacey Grummons

On Monday, December 5, 2017, the Supreme Court heard oral arguments in the highly anticipated case of Masterpiece Cakeshop v. Colorado Civil Rights Commission.


This case stems from a 2012 incident, wherein Charlie Craig and David Mullins sought out cake artist Jack Phillips to design a cake for their wedding. Mr. Phillips, the Masterpiece Cakeshop owner, refused to make them a wedding cake on the basis that their same-sex marriage was contrary to his sincerely held religious beliefs. Mr. Phillips’ refusal occurred before any discussion of designs or words that would be on the cake.

Consequently, the couple filed discrimination charges pursuant to Colorado’s Anti-Discrimination Act, and the Colorado Civil Rights Commission issued a cease-and-desist order to Masterpiece Cakeshop. The Colorado Court of Appeals upheld that order.

Mr. Phillips argues that Colorado’s Anti-Discrimination Act, as well as the cease-and-desist order, are a violation of his First Amendment freedoms of expression and religious exercise. It is Mr. Phillips’ stance that, by declining to design and bake a cake for the couple’s wedding, he was exercising his constitutional right to refrain from artistic expression.

In contrast, the Commission has been arguing that designing a cake is not a form of expressive speech. In addition, the Commission has argued that the act of baking a cake does not necessarily constitute participation in, or the condoning of, a wedding celebration for a same-sex couple.

Cakes for same-sex weddings are not the only type of cake that Mr. Phillips has refused to make, however. He also does not bake Halloween cakes, divorce cakes, or adult-themed cakes. Further, Mr. Phillips did not refuse to serve the couple altogether, as he offered them any other cake or pre-made baked good he had in the store.

Since the lower court’s ruling, Mr. Phillips has stopped making wedding cakes.

Mr. Phillips’ Oral Argument

Some of the layers the court has to consider when making this decision are what constitutes expressive speech, and who is considered an artist. Mr. Phillips argues that he is an artist who intends to speak through his custom-designed cakes. Consequently, when he bakes, he “is painting on a blank canvas. He is creating a painting on that canvas that expresses messages[,]” and it, therefore, should be protected under the First Amendment. Mr. Phillips likens his cake designs to that of the work of other artists, such as painters and sculptors.

In oral arguments, Justice Elena Kagan outlined what she calls the “three axes” of the case. The first axis inquires about the possibility of a bright line rule and what that would look like in the context of civil rights cases. The second axis involves what persons the ruling should apply to. Specifically, Justice Kagan asked Mr. Phillips’ counsel, “Why isn’t it about race? Why isn’t it about gender? Why isn’t it about people of different religions?”  The third axis revolves around why this case is merely focused on weddings, and why this case’s outcome should not also apply to other events, such as funerals, Bar Mitzvahs, First Communions, anniversaries, and birthdays.

With regard to the first axis – an inquiry of significant focus throughout oral arguments – some of the examples of artistic expression that the justices inquired about included architecture, hairstyles, and flower arrangements. Justice Kagan asked Mr. Phillips’ counsel whether a hairstylist or a make-up artist could rely on his or her religious beliefs as a basis for refusing to provide services for a same-sex wedding. His counsel responded in the negative, arguing that doing someone’s make-up is not speech.

Building upon Justice Kagan’s concerns, Justice Stephen Breyer acknowledged the importance of asking such questions as Kagan’s in the Court’s search for “some kind of distinction that will not undermine every civil rights law.” Justice Sonia Sotomayor did the same, turning her attention to concerns with the creation of a ruling that could lead to a slippery slope of discrimination and hardship for the LGBT community, in addition to opening doors for other protected class issues.

Specifically, Justice Sotomayor provided the hypothetical of a same-sex couple on a military base, in a predominantly-Christian town. “[I]t may come to pass where the [only] two cake bakers [in town] will claim the same abstention [as Phillips has claimed],” Justice Sotomayor said. “So how do we protect the military men and women who are of the same sex who want to get married in that town because that’s where all their friends are, because the base is there?” Mr. Phillips’ counsel distinguished the hypothetical from the case at hand, arguing that such a situation could satisfy heightened scrutiny because “interests in providing access to goods and services would be narrowly tailored.”

The Commission’s Oral Argument

While the justices viewed much of Mr. Phillips’ oral argument through the lens of Justice Kagan’s three axes, the justices analyzed the oral argument of the Commission through the lenses of tolerance, accommodation, and context.

As to context, Justice Samuel Alito asked counsel about the context of a cake’s creation. For example, the Commission argued that just as you would have to sell a “Happy Birthday” cake to a “member of the Jewish faith,” you would also have to sell a “Happy Birthday” cake to “an African-American couple.” Justice Alito responded by asking, if Mr. Phillips were to sell a “November 9th, The Best Day in History” cake to a wedding anniversary couple, would he also then be required to sell a “November 9th, The Best Day in History” cake to someone wishing to celebrate Kristallnacht, a night in 1938 when Nazis attacked Jewish persons and their property? The Commission distinguished this hypothetical from the case at hand.

Regarding accommodation, Justice Anthony Kennedy addressed how it seemed to him that “the state … has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.” He questioned whether an issue of accommodation exists, as other bakeries were available to the couple.

Chief Justice John Roberts chimed in as well, asking if the results of this ruling would require, for example, Catholic Legal Services to provide legal services to a same-sex couple, despite sincerely held religious beliefs that do not support same-sex marriage. Colorado’s Solicitor General answered in the affirmative.

Moving Forward

A decision is expected from the Court in 2018, likely around the end of the Court’s term in June. Until then, the country will be engaged in vibrant debates in the court of public opinion.



Sources Cited

Transcript of Oral Argument, Masterpiece Cakeshop v. Colorado Civil Rights Commission (2017) (No. 16-111)

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