On July 22, 2016, Jack C. Phillips, proprietor of Masterpiece Cakeshop, Ltd., a Colorado business, filed a Petition with the U.S. Supreme Court, seeking review of the Colorado Court of Appeals decision rendered on August 13, 2015, which rejected his appeal of a ruling by the Colorado Civil Rights Commission that Phillips and his business had violated Colorado’s Anti-Discrimination Act (CADA) by declining service to a gay male couple seeking to purchase an appropriately-decorated cake for their wedding reception. The Petition for Certiorari in Masterpiece Cakeshop v. Colorado Civil Rights Commission was filed by lawyers from Alliance Defending Freedom (ADF), a self-described “Christian” law firm, with local counsel Nicolle H. Martin of Lakewood, Colorado. The Colorado Supreme Court had issued an order on April 25 refusing to review the case, which set the 90-day clock running for filing a certiorari petition.
The Petition positions this as a First Amendment free speech and free exercise case. Arguing that the creation of a wedding cake is an expressive act signaling the baker’s approval of the marriage for which it is being created, Phillips’ attorneys argue that penalizing him under the state’s public accommodations law for declining an order for a wedding cake from Charlie Craig and David Mullins is, in effect, government-compelled speech. Furthermore, they argue, since Phillips is a devout Christian who is compelled by his faith to withhold any expression of approval from same-sex marriages, application of the public accommodations law to him violates his right to free exercise of religion. Furthermore, the Petition asserts, when it became public that Phillips had refused to bake a wedding cake for Craig and Mullins, another bakery provided one at no charge, so the men were not deprived of this important component of their wedding celebration. At the time Craig and Mullins sought to order the cake, same-sex marriage was not yet available in Colorado. Their intention was to marry in another jurisdiction and then hold their wedding reception in Colorado so that their family and friends could easily attend.
In arguing that the Supreme Court should review the case, the Petition contends that there is a division of authority in lower courts about the underlying constitutional issues. The Petition contends that the Colorado Court of Appeals ruling conflicts with cases from the 9th and 11th Circuit courts of appeals “regarding the free speech protection of art,” that it “deepens an existing conflict between the 2nd, 3rd, 6th, and 11th Circuits as to the proper test for identifying expressive conduct,” and that it “conflicts with free exercise rulings by the 3rd, 6th, and 10th Circuits.” None of the cases mentioned, of course, involves the issue of a baker refusing to make a wedding cake for a same-sex couple. Of course, the contention that this is about “art” depends upon the court accepting the Petition’s characterization of Phillips as a “cake artist”, not just a baker who happens to design and execute wedding cakes.
As part of his argument, of course, Phillips goes to great lengths to endow wedding cakes with heavy symbolic importance, insisting that a wedding ceremony is incomplete without one and that the spouses feeding each other pieces of cake is, in effect, the high point of the event. Not to denigrate the creativity and artistic talent that may go into producing a custom-designed wedding cake, there might be some question whether the baker who designs and executes the cake is an “artist practicing in a visual medium,” the phrase lifted from the 9th and 11th Circuit cases. As to the cases upon which the Petition relies, see Buehrle v. City of Key West, 813 F.3d 973 (11th Cir. 2015) and Anderson v. City of Hermosa Beach, 621 F.3d 1051 (9th Cir. 2010), where the issue was whether a person denied a permit to operate a tattoo parlor in a particular location had thereby suffered a violation of his 1st Amendment free speech rights. The Petition argues, based on these cases, “Applying the 9th and 11th Circuit’s analysis to the facts at hand leads to the inevitable conclusion that Phillips’ custom wedding cakes and artistic design process are pure speech.” The Petition argues that those circuit courts “would reject any artificial separation between Phillips’ artistic process and the custom wedding cakes that result.” The Petition suggests that only the Supreme Court can resolve the logical conflict between these tattoo cases and the wedding cake case.
The Petition also argues that there is conflict among the circuits about where to draw the line between speech and conduct in determining the regulatory power of the state. The Supreme Court has tangled with the issue of expressive conduct in some cases, but not so precisely as to avoid disagreements among lower courts about where to draw the line for purposes of applying free speech doctrine, argues the Petition. Ironically, the leading case upon which the Petition relies to argue for a broad reading of expressive conduct is Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), in which the Supreme Court unanimously held that a parade is an inherently expressive activity, thus privileging the organizers of Boston’s St. Patrick’s Day Parade under the First Amendment to determine its message and whether inclusion of a particular group, the Irish-American Gay, Lesbian and Bisexual Group of Boston, would add a message that the organizers did not want to express as part of their parade. The Petition argues that baking a wedding case is also an inherently expressive activity, signaling the baker’s message of approval and congratulations to the marrying couple, which should not be compelled by the government.
Virtually the same issue was posed to the Supreme Court just a few years ago in Elane Photography, LLC v. Willock, 134 S. Ct. 1787 (2014), denying certiorari, 309 P.3d 53 (N.M. 2013), where the Court refused to review a ruling by the New Mexico Supreme Court that applying the state’s public accommodations law to a wedding photographer who objected to providing her services to a lesbian couple for their commitment ceremony did not violate the 1st Amendment rights of the photographer. It would be difficult to argue that a wedding photographer is less of an “artist working in a visual medium” than a wedding cake baker, but there was not sufficient support on the Court to take that case, where the petition was presented after the Court had ruled in U.S. v. Windsor that the federal government must recognize same-sex marriages, but had not yet ruled in Obergefell v. Hodges that the states must afford the same marriage rights to same-sex couples that they do to different-sex couples. So far, lower courts around the country have unanimously rejected claims by small businesses that their refusals to comply with public accommodations laws because of their religious or free speech objections to same-sex marriages enjoy constitutional protection.
Turning to the other First Amendment issue raised by the petition, Free Exercise of Religion, the Petition argues that because the Colorado anti-discrimination law allegedly allows for case-by-case religious exemptions depending on the reason for the exemption, the determination by the Colorado Civil Rights Commission whether Phillips and his cake-shop are entitled to a religious exemption in this case should be subjected to strict scrutiny by the Court. Thus, argues the Petition, the state should have to show a compelling interest justifying this imposition on Mr. Phillips’ religious beliefs. Phillips’ cake-shop is an incorporated business, so the argument also relies on the Court’s ruling in the Hobby Lobby case that businesses are entitled to claim religious free exercise rights based on the beliefs of their owners. (The 5-4 ruling in Hobby Lobby depended on the vote of Justice Scalia, since deceased, and this would seem to be a decision very vulnerable to overruling depending on who is eventually confirmed for that seat on the Court.) The Petition’s argument on this point seems curiously twisted, since the Supreme Court decisions it relies upon involve a state imposing criminal penalties for somebody engaging in a religious act, rather than, as in this case, somebody declining to provide a service in a business context based on his religious beliefs.
In both arguments, the Petition refers to counterexamples, stating: “It is undisputed that the Colorado Civil Rights Commission does not apply CADA 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.” One suspects the first two are hypotheticals addressed during argument before the Colorado court, while the third seems to stem from a stunt that was undertaken in reaction to the filing of the civil rights charge in this case. In each of these instances, whether hypothetical or real, the customer was asking the “cake artist” to create a particularized political statement on a cake, which would seem distinguishable from requesting the creation of a wedding cake that merely congratulations the couple on their wedding without making any overt political statement.
Disputes of this type continue to arise around the country in states and localities that ban sexual orientation discrimination in places of public accommodation, generating litigation in state courts when civil rights agencies rule against the businesses. Eventually this issue is likely to get to the Supreme Court if a genuine split of authority emerges. It seems unlikely that the Court will take up the issue when there is no direct split among lower courts about how to handle the particular issue of business refusals to provide goods or services for same-sex weddings, especially when the Court is shorthanded and seems inclined to avoid granting review in cases where the Justices are likely to be evenly divided, but one can never say “never” with the Supreme Court.