Editorial: Masterpiece Cakeshop: The Supreme Court's Multi-Layered Cake Case is Not About Cakes

By Justin Ayars, JD

By now, most everyone has heard of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission that is currently before the U.S. Supreme Court. However, this “cake case” is not actually about wedding cakes; rather, it’s about something much more complex: balancing anti-discrimination laws with First Amendment protections.

This dispute began when David Mullins and Charlie Craig, a same-sex couple, asked a Denver-area bakery to make them a custom wedding cake. The bakery owner, Jack Phillips—a self-described “cake artist” and devout Christian—refused to create a custom cake for the couple, citing his religious beliefs. He claimed that this refusal was in line with his decision not to design and bake any Halloween-themed cakes, cakes including alcohol as an ingredient, cakes celebrating divorce or any other cakes conflicting with his religious beliefs. He would, however, sell the couple any products in his store, including a generic (not custom) wedding cake. The couple filed a complaint with the Colorado Civil Rights Commission (CCRC).

 Photo Courtesy of Ted Eytan and Flickr

Photo Courtesy of Ted Eytan and Flickr

The CCRC concluded that the baker violated the Colorado Anti-Discrimination Act (CADA) and that the First Amendment did not permit Phillips to refuse his services to the couple. Phillips challenged the CCRC’s ruling by arguing that applying the state’s anti-discrimination law to require him to create a custom cake for a same-sex couple violated his First Amendment rights to free exercise of his religion and free speech.

The couple posits the issue as one involving public accommodations, not free speech. They argue that it is a pillar of American anti-discrimination law that, when a business opens itself to serve the general public, it cannot refuse to serve customers based on who they are. They argue that permitting Phillips to refuse services to them would open the doors to other forms of discrimination that have long been prohibited by courts (e.g. – race, color, creed, sex, national origin, etc.). The Justice Department, on the other hand, argues, “Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights."

In short, the issue is whether the First Amendment bars application of Colorado’s public accommodations law—which prohibits discrimination in places of public accommodation—to compel a person to create expression (here, a wedding cake) that conflicts with that person’s sincerely held religious beliefs about same-sex marriage.

This case has potential far-reaching implications for American society. If Phillips’ position prevails, a portrait photographer could arguably refuse to conduct photo shoots with Hispanic families or a banquet hall could refuse to host events for Jewish families. In fact, the entire inquiry that Phillips endorses—a judge deciding whether a religious belief is sincerely held or a sufficiently material command in a particular religion—would result in an uncomfortable entanglement of the courts in matters of religion.

The toughest question in this case is an elusive one: Where is the line when it comes to the First Amendment’s protection of freedom of speech? Phillips argues that his cakes are works of art that convey a message and he, therefore, is engaged in speech. That argument begs the question: Are chefs, tailors, florists, hairstylists, makeup artists, etc. also engaged in free speech because their works convey messages? The Supreme Court will likely try to thread that needle by issuing a narrow decision that does not massively unsettle either First Amendment or anti-discrimination rights.