CDI Corner
Craig v . Masterpiece Cakeshop , Inc .: Protecting the First Amendment or Jeopardizing Protections of Civil Rights Laws
CDI Corner
Craig v . Masterpiece Cakeshop , Inc .: Protecting the First Amendment or Jeopardizing Protections of Civil Rights Laws
LISA KOHRING
This past December SCOTUS heard oral argument in the Masterpiece Cake Shop case , involving a cakeshop ’ s refusal to create a custom made cake for a same-sex couples ’ wedding because of the baker ’ s religious beliefs . The baker argues that creating the cake is a “ medium ” used to honor god through artistic expression protected by the First Amendment . The couple argues the refusal is unlawful identity-based discrimination because of their sexual orientation . Boiled down to its core components , the case pits First Amendment protections and religious freedom against protections guaranteed by our civil rights laws . The ultimate quandary for SCOTUS is crafting the correct decision without “ upset [ ting ] every civil rights law since year 2 .”
The case arose in Colorado in 2012 , when Cakeshop owner , Jack Phillips , refused to bake a wedding cake for Charlie Craig and David Mullins , a same-sex couple . Phillips , a devout Christian , said creating a cake for the couple is antithetical to his religious beliefs against same-sex marriage . Outraged , the couple filed charges of discrimination alleging Phillips violated the Colorado Anti-discrimination Act , which years earlier was revised to prohibit sexual orientation discrimination in employment , housing , and public spaces . Following an investigation , the division found probable cause , giving the couple the green light to file a complaint with the Colorado Office of Administrative Courts .
In 2013 , ALJ Robert Spencer heard the case , and Phillips argued his refusal to create the cake was protected by the First Amendment because , he claimed , it is artistic expression protected under the First Amendment ’ s free speech and free exercise of religion clauses . In the past , SCOTUS has recognized that some forms of conduct are symbolic speech and are entitled to First Amendment Protections if the conduct is “ inherently expressive ”. See United States v . Obrien , 391 U . S 367 , 376 , 88 S . Ct . 1673 , 20 L . Ed . 2d 672 ( 1968 ) ( determining that burning draft cards during anti-war protest is a form of protected expression ) and Rumsfeld v . FAIR , 126 S . Ct . 1297 , 1310 ( 2006 ) ( reiterating that only inherently expressive conduct is protected and rejecting the idea that any conduct can be labeled speech whenever someone intends to express an idea ). Phillips ’ arguments were rejected on summary judgment , with the ALJ holding that Phillips violated CADA by refusing to custom make a cake . The Colorado Civil Rights Commission affirmed the decision and entered a cease and desist order instructing Phillips to provide sensitivity training to his staff and quarterly reports to the Commission confirming CADA compliance . Phillips appealed the decision attempting , among other things , to draw a distinction between discrimination based on an opposition to same – sex marriage ( the couples ’ intended conduct ) and discrimination based on sexual orientation ( the couples ’ status ). Phillips also argued the order violated the Compelled Speech Doctrine because it compels him to create wedding cakes for same-sex couples , an act he claims celebrates same-sex marriage , and conveys the message that he supports same-sex marriage . Craig , 370 P . 3d at 285 .
In 2015 , the appellate court rejected Phillips ’ arguments and , relying on a legion of cases rejecting similar conduct versus status based distinctions , held that certain conduct closely correlated with status simply cannot be divorced from status . Phillips ’ attorney argued that samesex marriage is not conduct exclusive to same-sex couples ; an argument the Court rejected because those who engage in same-sex marriage are predominantly , if not exclusively , same-sex couples . Phillips ’ argument is a difference without a distinction , and Phillips ’ opposition to same-sex marriage is akin to an opposition to sexual orientation and , therefore , is a refusal because of their sexual orientation in violation of CADA . See Craig v . Masterpiece Cakeshop , Inc ., 2015 COA 115 , ¶ 25 , 370 P . 3d 272 , 279 ( CO Ct . App ., 2015 ).
During the December argument , Justice Sotomayor posited the most important question to be resolved by the Court is , “ what is speech and what is not speech ?” If creating a custom made cake is considered artistic expression through which Phillips honor ’ s god , then where is the line drawn for other artisans , such as the hairdresser , make-up artist , or florist , each of whom could argue their services
PALMBEACHBAR . ORG 12 also involve protected expressive conduct ? Is all expressive conduct entitled to protection ? Phillips ’ attorney was unable to articulate where the line should be drawn , but argued that Phillips ’ willingness to sell birthday cakes , cupcakes , and other nonwedding cake products to LGBTQ members establishes that there is no violation of CADA . The couple ’ s attorney cautioned that a ruling favoring Phillips would eviscerate longstanding civil rights laws , setting a dangerous precedent that private business owners can discriminate against members of protected classes for religious reasons . The Supreme Court rejected this same argument more than forty years ago in the Ollie ’ s Barbecue and Piggie Park Enterprises cases , each of which taught us that faith alone cannot override society ’ s interest in equality for all .
SCOTUS could decide the issue or it could choose to punt and remand the case back to the lower court . No matter what side of the fence you ’ re on , many believe there is no winning scenario .
1 Hereinafter referred to as “ CADA ”;
2 Section 24 – 34 – 601 ( 2 )( a ), C . R . S . 2014 , reads in pertinent 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 ... sexual orientation ... the full and equal enjoyment of the goods , services , facilities , privileges , advantages , or accommodations of a place of public accommodation .” Craig v . Masterpiece Cakeshop , Inc ., 2015 COA 115 , ¶ 27 , 370 P . 3d 272 , 280 ( CO Ct . App ., 2015 ); Supreme Court should uphold Colorado discrimination law in wedding cake case , Joel Judd and Jennifer Viega , The Denver Post , Dec . 1 , 2017 , found at : http :// www . denverpost . com / 2017 / 12 / 01 / supreme-court-should-uphold-colorado-discrimination-law-in-wedding-cake-case /
3 “ The freedom of speech protected by the First Amendment includes the right to refrain from speaking and prohibits the government from telling people what they must say .” Craig v . Masterpiece Cakeshop , Inc ., 2015 COA 115 , ¶ 48 , 370 P . 3d 272 , 283 ( CO Ct . App ., 2015 ). ( Internal quotation marks omitted .)
4 Judge Orders Colorado Bakery to Cater for Same-Sex Weddings , Liz Fields , ABC News , Dec . 7 , 2013 , at : http :// abcnews . go . com / US / judge-orders-colorado-bakery-cater-sex-weddings / story ? id = 21136505
Lisa Kohring is a Senior Litigation Associate with the School District of Palm Beach County and can be reached at Lisa . kohring @ palmbeachshools . org