• At the heart of a case concerning a gay couple and their wedding cake maker is a crucial debate: Which laws should be given more weight? Those that protect civil rights and that bar public businesses from discriminating based on sexual orientation (so-called public accommodations laws) or those that defend free speech and religious freedom?
• A decision in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is expected by June 2018.
• If the Court decides in favor of the couple, bakers across the nation may not refuse to make wedding cakes based on religious or free speech claims. They must bake for everyone; civil rights laws win.
• If the Court decides in favor of the baker, ruling that freedom of religion and free speech override civil rights laws banning discrimination, the baker, and potentially any other baker, can refuse to make wedding cakes for same-sex couples. This decision would create a dangerously slippery slope, allowing those in the service industry to withhold their services for any number of discriminatory reasons.
• A likely outcome is that the Court will send the case back to the Colorado Civil Rights Commission and ask for a retrial without the examiner who appeared to be biased against freedom of religion claims. The outcome of a retrial opens the case up to additional arguments and could draw it out further.
On December 5, 2010, Charlie Craig and David Mullins met at a party near their home in Denver. They hit it off; the following year, they became engaged. Since they couldn’t legally marry in Colorado at the time, they decided they would have the ceremony in Provincetown, Massachusetts, and then come back home for the reception. They needed a wedding cake, and their reception planner recommended the Masterpiece Cakeshop in Lakewood, Colorado.
Craig’s mother, Deb, who was visiting from Wyoming, went along with them to meet the baker and shop owner, Jack Phillips. According to Mullins, when the three sat down with Phillips, he immediately asked them who the cake was for. When he found out it was for Craig and Mullins, Phillips quickly ended the meeting, saying he would not make a cake for a same-sex wedding. “We were just mortified and embarrassed,” Mullins told NBC News.
The couple subsequently filed charges of discrimination with the Colorado Civil Rights Division, alleging that Masterpiece Bakeshop violated the Colorado Anti-Discrimination Act (CADA), which prohibits discrimination in a place of public accommodation. The Administrative Law Judge ruled in their favor, a decision that was affirmed by the Colorado Civil Rights Commission. The Colorado Court of Appeals also agreed, and held that the First Amendment does not exempt businesses open to the public from anti-discrimination laws.
“When you put your shingle out you have to serve people — all people. To say ‘no’ is a major civil rights violation.”
The Colorado Civil Rights Commission ordered Phillips to forgo baking wedding cakes unless he agreed to bake the same cakes for same-sex couples as he would for heterosexual couples. Rather than abiding, the baker decided to stop making wedding cakes altogether, losing 40 percent of his business in the process. He appealed to the Supreme Court.
The Court heard oral arguments on December 5, 2017, precisely seven years to the day the couple met. The two sides set up a major clash between laws that ban businesses open to the public from discriminating based on sexual orientation (so-called public accommodations laws), and claims of free speech and religious freedom.
Lawyers for Masterpiece Cakeshop and its baker maintain that his wedding cakes are a form of creative expression protected by the First Amendment, and that he cannot be compelled by the government — in this case the Colorado Civil Rights Commission — to create expression with which he disagrees.
In particular, the baker claims that he would have sold the couple an off-the-shelf cake, but that forcing him to bake a custom cake for a same-sex wedding violates his First Amendment rights to both free speech and religious freedom. In its brief to the Court, representatives for Masterpiece Cakeshop wrote that artists should be “free to make their own moral judgements about what to express through their works,” and that the government should not be able to “command” artists to create “what is not in their hearts or minds.”
Lawyers for the Colorado couple argue that the state’s civil rights law prohibits discriminatory business practices, such as refusing to sell a cake because of a disdain for same-sex marriage. Any infringement on the baker’s free speech or religion is incidental and allowed by anti-bias laws, they maintain. The baker’s position, they argue, flies in the face of the Civil Rights Act and long-standing Supreme Court case law like the 1968 case of Newman v. Piggie Park, which helped to establish the concept that religious views do not…
Authored by Janine Maureen