The U.S. Supreme Court has agreed to consider whether Denver’s Masterpiece Cakeshop discriminated against a gay couple, Charlie Craig and David Mullins, by refusing to make them a wedding cake just over a year after the case was rejected by the Colorado Supreme Court. Attorneys for Masterpiece owner Jack Phillips argue that a Colorado Civil Rights Commission ruling in favor of Craig and Mullins violated his rights as an artist not to create works that violate his personal beliefs, and they may find a find that Neil Gorsuch, a Coloradan who ruled in favor of religious freedom in an important case prior to being appointed to the Supreme Court, has sympathy for this view.
The original incident took place back in 2012, and in May 2014, the Colorado Civil Rights Commission found that Craig and Mullins had been victims of discrimination. In that hearing, as reporter Melanie Asmar reported at the time, Commissioner Susie Velasquez said that because Masterpiece Cakeshop is a “public accommodation” under the law, it is barred from discriminating against same-sex couples. “It should be open to everyone,” she said.
“If a cake shop said, ‘No, I don’t bake cakes for Hispanics,’ that would be the same,” added commissioner Diann Rice, speaking in agreement with Velasquez.
“It’s not an issue of free speech,” said commissioner Raju Jairam. “I can believe anything I want to believe, but if I’m going to do business here, I better follow the law.”
In April 2015, Phillips’s legal team from the faith-based Alliance Defending Freedom asked that the matter be brought before the Colorado Court of Appeals. Here’s a summary of their arguments at the time:
(Phillips’s) work is intimately connected to his faith. He believes God granted him artistic and creative abilities and that he is religiously obligated to use those abilities in a manner that honors God. He thus declines to create cakes that convey messages that are contrary to his religious convictions, like those celebrating atheism, racism, indecency, or Halloween.
Nor will Phillips create wedding cakes honoring same-sex marriages, regardless who orders them, because Phillips believes that God ordained marriage as the sacred union between one man and one woman.
There are some 300 other bakeries in the Denver area that are available to fulfill such requests. The State has no vital interest in compelling Phillips personally to provide such a non-essential service, especially when scores of other bakeries are ready and willing to do so.
Phillips is forced to choose between following his religious beliefs or staying in business. No state should put its citizens to such a Hobson’s Choice.
Granting Phillips’ request that CADA (Colorado’s Anti-Discrimination Act) be enforced in a manner that respects his free speech and free exercise rights will not undermine the protections public accommodations and other laws provide against discrimination. It will simply recognize and reaffirm that such laws violate the First Amendment when they are “applied to expressive activity.”
And its scope would be limited to those businesses that create and sell expression…. It would thus protect the right of Colorado baker Marjorie Silva to decline to create a cake that references biblical teaching about sex and marriage based on her “standards of offensiveness,” or a gay Colorado photographer to decline an offer from Westboro Baptist Church to shoot photos at its latest demonstration.
None of these assertions held water with the Colorado Court of Appeals, whose August 2015 decision, accessible below, was unanimous. Here’s an excerpt detailing some of the reasons the judges shot down Phillips’s arguments:
The only issues before the [administrative law judge] were (1) whether Masterpiece violated [the Colorado Anti-Discrimination Act] by categorically refusing to serve Craig and Mullins because of its opposition to same-sex marriage and, if so, (2) whether CADA, as applied to Masterpiece, violated its rights to freedom of expression and free exercise of religion. Evidence pertaining to Craig’s and Mullins’ wedding ceremony — including the nature of the cake they served — had no bearing on the legality of Masterpiece’s conduct. The decision to categorically deny service to Craig and Mullins was based only on their request for a wedding cake and Masterpiece’s own beliefs about same-sex marriage. Because Craig and Mullins never conveyed any details of their desired cake to Masterpiece, evidence about their wedding cake and details of their wedding ceremony were not relevant.
The ruling summed up the controversy like so: “Masterpiece remains free to continue espousing its religious beliefs, including its opposition to same-sex marriage. However, if it wishes to operate as a public accommodation and conduct business within the State of Colorado, CADA prohibits it from picking and choosing its customers based on their sexual orientation.”
The April 2016 announcement by the Colorado Supreme Court that it would let the Colorado Court of Appeals’ determination stand was cheered by Ria Tabacco Mar, a staff attorney for the American Civil Liberties Union’s LGBT Project, who argued the case on behalf of Craig and Mullins.
“The highest court in Colorado today affirmed that no one should be turned away from a public-facing business because of who they are or who they love,” Tabacco Mar said in a statement. “We all have a right to our personal beliefs, but we do not have a right to impose those beliefs on others and discriminate against them. We hope today’s win will serve as a lesson for others that equality and fairness should be our guiding principles and that discrimination has no place at the table — or the bakery, as the case may be.”
But the Alliance Defending Freedom didn’t accept defeat. On a page devoted to the Masterpiece Cakeshop controversy, Jeremy Tedesco, ADF’s senior counsel, argued that “Jack’s ability to make a living and run his family business shouldn’t be threatened simply because he exercised his artistic freedom. Artists speak through their art, and when Jack creates custom wedding cakes, he is promoting and celebrating the couple’s wedding. Jack will gladly allow anyone to purchase any product he sells, but he simply can’t put his artistic talents to use on a custom cake for an event so at odds with his faith convictions.”
This theme was echoed in the ADF’s petition to the U.S. Supreme Court, also shared here. The document argues that the Colorado Civil Rights Commission and the Colorado Court of Appeals reached their conclusions “despite the artistry of Phillips’ cakes and the Commission’s exemption of other cake artists who declined to create custom cakes based on their message. This analysis (1) flouts this Court’s controlling precedent, (2) conflicts with Ninth and Eleventh Circuit decisions regarding the free speech protection of art, (3) deepens an existing conflict between the Second, Third, Sixth, and Eleventh Circuits as to the proper test for identifying expressive conduct, and (4) conflicts with free exercise rulings by the Third, Sixth, and Tenth Circuits.”
The petition adds: “It is undisputed that the Colorado Civil Rights Commission…does not apply CADA [Colorado Anti-Discrimination Act] to ban (1) an African-American cake artist from refusing to create a cake promoting white-supremacism for the Aryan Nation, (2) an Islamic cake artist from refusing to create a cake denigrating the Quran for the Westboro Baptist Church, and (3) three secular cake artists from refusing to create cakes opposing same-sex marriage for a Christian patron. Neither should CADA ban Jack Phillips’ polite declining to create a cake celebrating same-sex marriage on religious grounds when he is happy to create other items for gay and lesbian clients.”
Now that the U.S. Supreme Court has given permission to the Alliance Defending Freedom to make this arguments one more time, court watchers will be closely observing Gorsuch; as a member of the 10th Circuit Court of Appeals, he ruled in favor of the Little Sisters of the Poor, who challenged Obamacare’s contraception mandate on grounds of religious freedom.
During a conference call this morning, ADF executives took a break from celebrating the alliance’s victory in the Trinity Lutheran Church case — justices ruled that states can’t refuse all financial add to churches — to talk about the Masterpiece matter. ADF president and CEO Michael Farris talked about “a great day at the Supreme Court for us,” while senior counsel Kristen Waggoner argued that “Colorado’s anti-discrimination laws have been used in Jack’s case to silence and punish him.”
As for whether the Alliance believes Gorsuch will be sympathetic to its arguments, Waggoner said, “We look forward to arguing the case in front of the entire court, including Justice Neil Gorsuch.” However, she added, “I think it would be inappropriate for me to speculate on his personal opinion of the case.”
In addition, Phillips shared a statement of his own. According to him, “I opened my shop over 23 years ago so I could use my artistic talents to help people in my community celebrate important events, especially weddings.” He noted that his is a family business and “many of my clients are like family.” At the same time, he noted that he always tried to operate in a manner that honors God; he closes the shop on Sundays and refuses to decorate pastries with messages that violate his beliefs, including ones touching on “atheism” and “indecency.”
Regarding Craig and Mullins, Phillips said he said that he’d gladly sell them pre-made cakes or cookies but “politely declined” to write anything on a cake that would fly in the face of his opinion that “marriage is a sacred relationship between a man and a woman.” He also pointed out that “the couple left and obtained a free wedding cake with a rainbow design from another bakery in town.”
After their case became public, Phillips continued, he’s lost 40 percent of his business “and I fear I will ultimately lose everything if the lower court’s decision isn’t reversed.” He also said that he’s received “hateful calls and one death threat so vile that I hid my daughter and granddaughter in the back until the police arrived.” In his view, laws like the one in Colorado “will result in kindhearted people” (like him, presumably) being “dragged before the courts — and since Craig and Mullins are free to hold their beliefs about marriage, “all I ask is that I have the equal opportunity to hold mine.”
As for Mullins and Craig, their statements about the latest development were shared in a release from the ACLU of Colorado.
“This has always been about more than a cake,” Mulllins stated. “Businesses should not be allowed to violate the law and discriminate against us because of who we are and who we love.”
Craig, for his part, said, “While we’re disappointed that the courts continue debating the simple question of whether LGBT people deserve to be treated like everyone else, we hope that our case helps ensure that no one has to experience being turned away simply because of who they are.”
James Esseks, director of the ACLU’s LGBT Project also weighed in with this: “The law is squarely on Dave and Charlie’s side because when businesses are open to the public, they’re supposed to be open to everyone. While the right to one’s religious beliefs is fundamental, a license to discriminate is not. Same-sex couples like Dave and Charlie deserve to be treated with the same dignity and respect as anyone else, and we’re ready to take that fight all the way to the Supreme Court.”
Click to read the Masterpiece Cakeshop petition to the U.S. Supreme Court and the Colorado Court of Appeals’ decision.