A Colorado Administrative Law Judge ruled on December 6, 2013, that a bakery had violated the state’s public accommodations law when its owner refused to sell a wedding cake to a gay male couple on July 19, 2012.
Colorado does not have same-sex marriage, and only enacted a civil union law open to same-sex couples early in 2013. Back in 2012, however, Coloradans Charlie Craig and David Mullins planned to get married in Massachusetts and then have a big celebration event for family and friends back home. Accompanied by Charlie’s mom, they went to Masterpiece Cakeshop, which sells wedding cakes, and sat down with the proprietor, Jack Phillips, at the “cake consulting table.” According to the factual findings in the opinion by ALJ Robert N. Spencer, “They introduced themselves as ‘David’ and ‘Charlie’ and said that they wanted a wedding cake for ‘our wedding.'” Phillips immediately said no, he doesn’t make wedding cakes for same-sex weddings. “I’ll make you birthday cakes,” he said, “shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.” Without any further discussion, David and Charlie and Charlie’s mom got up and left, went to another bakery, and make their cake arrangements without incident. The next day, Charlie’s mom called Phillips, who told her that he refused to make a wedding cake for David and Charlie because of his religious beliefs and because Colorado does not recognize same-sex marriages.
Although Charlie and David got their wedding cake, they felt humiliated by their experience with Phillips and decided to file a discrimination complaint to establish that his actions were unlawful. The Civil Rights Commission sided with Charlie and David, ruling that Phillips violated their statutory rights. When Phillips rejected that ruling, the case was referred for trial before an administrative judge. As an administrative judge, Spencer does not have authority to declare statutes unconstitutional, but he does have authority to determine whether the application of a statute in a particular case violates the constitutional rights of the defendant.
Judge Spencer found, based on Phillips’ testimony, that he is a practicing Christian who believes that “the Bible is the inspired word of God, that its accounts are literally true, and that its commands are binding on him.” He finds in the story of Adam and Eve and in a passage from Mark 10:6-9 (NIV) that only different-sex couples can marry. “Phillips also believes,” wrote Spencer, “that the Bible commands him to avoid doing anything that would displease God, and not to encourage sin in any way. Phillips believes that decorating cakes is a form of art and creative expression, and that he can honor God through his artistic talents. Phillips believes that if he uses his artistic talents to participate in same-sex weddings by creating a wedding cake, he will be displeasing God and acting contrary to the teachings of the Bible.”
Phillips did not contest that his bakery is a public accommodation subject to the state’s anti-discrimination law, but he argued in defense that the law could not be applied in such a way as to violate his 1st Amendment rights of freedom of speech and free exercise of religion. His bakery is incorporated but wholly owned by him, and he claims for his business the same 1st Amendment rights that he enjoys. Judge Spencer pointed out that at least for now in the states comprising the federal 10th Circuit, which includes Colorado, family-owned closely-held corporations do enjoy 1st Amendment free exercise of religion rights (as a result of a 10th Circuit decision that the Supreme Court recently agreed to review), and the Supreme Court held several years ago in the notorious Citizens United case that corporations have 1st Amendment free speech rights. Thus, Phillips argued, he should enjoy immunity from this discrimination charge on 1st Amendment grounds. In effect, Phillips was arguing that the 1st Amendment protects businesses and individuals from having to comply with anti-discrimination laws if their personal beliefs based on religion would be violated by compliance with the law.
In addition, Phillips argued that he did not actually discriminate because of David and Charlie’s sexual orientation, and thus could not be found to have violated the statute. He said that he would be happy to do business with them, so long as it didn’t involve a wedding cake for a same-sex wedding. He testified he would also refuse to sell a wedding cake to a same-sex couple to celebrate a civil union, so his ground of objection is not really that Colorado does not recognize same-sex marriages, but rather that he feels that selling a cake for any celebration of a same-sex relationship would be state-compelled speech that violates his freedom of speech, as well as forcing him to act in conflict with his religious beliefs.
Judge Spencer first rejected Phillips’ argument that his refusal to sell the wedding cake was not sexual orientation discrimination. “The salient feature distinguishing same-sex weddings from heterosexual ones is the seuxla orientation of its participants,” he wrote. “Only same-sex couples engage in same-sex weddings. Therefore, it makes little sense to argue that refusal to provide a cake to a same-sex couple for use at their wedding is not ‘because of’ their sexual orientation.” Drawing a telling analogy, he wrote, “If Respondents’ argument was correct, it would allow a business that served all races to nonetheless refuse to serve an interracial couple because of the business owner’s bias against interracial marriage,” but this kind of theory was refuted by the Supreme Court in 1983 in Bob Jones University v. United States, where the Court upheld the IRS action in revoking the university’s tax exempt status because it denied admission to interracial couples in violation of laws forbidding discrimination because of race.
On the free speech claim, Spencer rejected Phillips’ argument that “preparing a wedding case is necessarily a medium of expression amounting to protected ‘speech,’ or that compelling Respondents to treat same-sex and heterosexual couples equally is the equivalent of forcing Respondents to adhere to ‘an ideological point of view.'” Spencer distinguished between wedding cakes and “saluting the flag, marching in a parade, or displaying a motto,” all forms of conduct that have been found to constitute protected speech. Spencer noted that Phillips refused to do business with David and Charlie without any discussion about how the cake would be decorated or what might be written on it. “For all Phillips knew,” wrote Spencer, “Complainants might have wanted a nondescript cake that would have been suitable for consumption at any wedding.” In a footnote, Phillips mentioned that the cake they had eventually obtained from another bakery had a “filling with rainbow colors,” but questioned whether that could be seen as some sort of endorsement of same-sex marriage by the baker. Spencer characterized Phillips’ attempt to elevate making a wedding cake to the symbolic level of a compelled flag salute as an argument that “trivializes the right to free speech.”
Finally, Spencer rejected Phillips’ free exercise of religion argument. He said that this case is not about the government trying to regulate what Phillips believes, but rather a regulation of commercial conduct. “The types of conduct the United States Supreme Court has found to be beyond government control typically involve activities fundamental to the individual’s religious belief, that do not adversely affect the rights of others, and that are not outweighed by the state’s legitimate interests in promoting health, safety and general welfare,” Spencer commented, and cited a list of Supreme Court cases upholding neutral laws that incidentally regulate conduct, where the conduct involves some religious belief. “Respondent’s refusal to provide a cake for Complainants’ same-sex wedding is distinctly the type of conduct that the Supreme Court has repeatedly found subject to legitimate regulation,” he asserted, mentioning that the Supreme Court itself had ruled that laws prohibiting sexual orientation discrimination by public accommodations have specifically been mentioned by the Supreme Court as legitimate. The Supreme Court has ruled that a valid law that is neutral with respect to religion and generally applicable will be upheld if it is rationally related to a legitimate government interest. The Colorado public accommodations law meets that test.
As an administrative judge, Spencer does not have authority to impose fines or penalties. Upon finding that Masterpiece Cakeshop and Phillips had violated the law, his remedy was to issue a “cease and desist order” and take such other corrective action as is deemed appropriate by the Colorado Civil Rights Commission. If Phillips appeals this ruling, it might get to a stage where he would incur financial liability, however.
The ACLU LGBT & AIDS Project and the ACLU Foundation of Colorado and attorneys from King & Greisen, LLC, represented the complainants at the hearing before ALJ Spencer. Phillips enjoys legal support from Alliance Defending Freedom, a law firm that specializes in opposing gay rights under the guise of preserving the 1st Amendment rights of those who discriminate against gay people. Given ADF’s participation, it is likely this ruling will be appealed.
The Colorado bakery case is one of only several contesting the applicability of public accommodation laws to businesses that want to avoid providing goods and services for same-sex ceremonies. In Washington State, litigation proceeds against a florist shop, and in New Mexico, the state Supreme Court ruled earlier this year that a wedding photographer had violated the state’s public accommodations law by declining to provide photographic services for a same-sex commitment ceremony. The Supreme Court has received a petition to review the New Mexico case.