Tag Archives: Masterpiece Cake case; Supreme Court

The “Gay Cake” Supreme Court Decision: Not A Judicial Masterpiece

Martin Naunov, Middlebury class of ’17, used the Masterpiece Cakeshop case in his senior honors thesis to explore the potential conflict between equal treatment of gays and lesbians in the marketplace, and the Constitution’s guarantee of religious liberty and free speech.  Here he reacts to the Supreme Court’s decision, handed down on Monday, in the Masterpiece case.

On Monday, the U.S. Supreme Court handed down its ruling in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the same-sex wedding cake case. The decision? Far less sweeping than some had hoped but not as distinctly insignificant as some others maintain.


As I have explained in greater detail in an earlier post, Masterpiece invited the Court to strike a balance between two exalted, but sometimes conflicting, principles: equal treatment or anti-discrimination on one hand and free exercise of religion on the other.

The substantive questions that the case presented can be stated as follows: Does the Constitution require that religious wedding vendors be exempted from the scope of the public accommodation laws? Does compelling a wedding vendor—say a baker, a florist, or a photographer—to provide their wedding services on equal basis irrespective of the customer’s sexual orientation contravene the Free Exercise or the Free Speech Clause of the First Amendment?

As most newspapers’ headline make clear, the 7-2 Masterpiece majority sided with the religious baker. What these headlines make less clear, however, is that in actuality, the Court sided with no one on the substantive questions. Monday’s decision did not settle the tension between freedom of speech and religion and non-discriminatory treatment of the historically marginalized LGBT community.

The Court, in other words, did not answer the question whether wedding vendors have the First Amendment right to decline services for same-sex wedding ceremonies; and to the extent that it did, the answer is in the negative. Although “religious…objections are protected,” the majority opinion affirmed, “it is a general rule that such objections do not allow business owners…to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” Ministerial exception can be assumed, the opinion continued, “yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws.”

The Court sided with the baker by equivocating. Justice Kennedy hedged on the question whether Mr. Phillips had a First Amendment right to decline his services for same-sex weddings; however, Mr. Phillips certainly had the First Amendment right to “neutral and respectful consideration” of his religious liberty claims. This principle, the Court found, was “compromised” by the Colorado Civil Rights Commission’s “treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.”

The inference of religious animus was twofold. First, the Court found unacceptable certain remarks made by some of the commissioners. According to one of the commissioners, for example, “we can list hundreds of situations where freedom of religion has been used to justify discrimination…whether it be slavery, whether it be the holocaust…And to me it is one of the most despicable pieces of rhetoric that people can use…to hurt others.” I suspect many people—religious people like myself included—would find this remark to be largely innocuous and perhaps fair, even if somewhat overstated. To the Court’s swing Justice, however, it was unacceptable—clear evidence that the Commission’s deliberation was tainted by religious animus.

It may merit mentioning that conservative newscasts have been fulminating against the above remark long before Monday. In fact, when I talked to one of Mr. Phillips’ lawyers after December’s oral arguments, this comment was one of the very first issues she brought up.

In any event, the Court found another sign of religious animus in the discrepancy in the Commission’s treatment of Masterpiece versus three other cases where bakers declined to create cakes with religious text and images condemning same-sex marriage. A rationale might exist, the majority acknowledged, to differentiate these cases. Therefore, the issue is not the constitutional soundness of the differing outcomes—the other three bakers, unlike Mr. Philips, prevailed—but, rather, the differing level of respect with which the bakers’ conscience objections were treated. Namely, in Masterpiece, the Commission approached differently the element of attribution—Is the baker merely ‘a conduit’ of their customer’s message or is the message attributable to him? —and the argument that the bakery was willing to sell other products to the rejected customers.


Although constrained in its capacity to serve as a precedent in deciding the substantive questions in other cases of LGBT discrimination by wedding vendors, Masterpiece could prove to be nontrivial in its interpretation of Smith. This element—the Court’s treatment of Free Exercise doctrine—seems to have eluded many legal commentators.

Smith, which controls Free Exercise jurisprudence, pronounced the following rule for determining whether the challenged regulation contravenes the Free Exercise Clause: “if prohibiting the exercise of religion…is not the object…but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” In other words, according to Smith, as long as the law in question is a neutral law of general applicability that does not target a specific religion or religious practice, it should be reviewed under the “rational basis” standard.

The Smith decision did not, however, mean that the Court would absolve from strict scrutiny those laws that are not neutral or generally applicable. The Court made this clear in Lukumi, the precedent that the majority opinion in Masterpiece largely relies on.

In Lukumi, however, it was the very purpose of the law that was tainted by religious animus. Namely, soon after Santeria followers—known for practicing animal sacrifice—expressed an intent to establish a church in Hialeah, Florida, the city council enacted three ordinances that banned the sacrificial killing of animals. The city argued that the ordinances aimed to protect the public health and prevent animal cruelty. However, the ordinances banned almost exclusively Santeria rituals. Florida permitted almost every type of animal killing (e.g. for medical research) except for religious sacrifice; even with ritual killings, it exempted the ritual slaughter of animals by some other religions, such as kosher slaughter. It was obvious that the goal of the ordinances was suppression of Santeria religion’s central component. Hence the Court struck it down.

No such situation is present in Masterpiece. Public accommodation laws do not belong to the “purposeful discrimination” category that the Court found in Lukumi. Colorado’s Anti-Discrimination Act (CADA) does not condone discrimination on the basis of sexual orientation by one religion (say Muslims) but not by another (say Jews). The law applies to both home-based bakers and those who have a stand-alone store; it applies to both luxurious restaurants and Safeway stores.

The Court’s Masterpiece analysis, therefore, which subjected a formally neutral law under a level of scrutiny clearly harsher from the extremely deferential rational basis test required by Smith, is a milestone in its own right. It is possible that Masterpiece would amount to an anomaly, but the “gay cake case” could also prove to be an important precedent in future religious liberty cases. Somewhat paradoxically, this largely depends on whether the conservative-leaning Court decides to move away from Justice Scalia’s emphasis of formal neutrality and closer to Justice Brennan’s requirement for substantive neutrality—one that is concerned not only with the purpose of the challenged law but also with its application and effects on conscientious objectors.

Masterpiece, to conclude, ended up being quite insipid, but it did give Smith some bite.


Can You Have Your Cake and Free Speech Too? The Supreme Court and the Masterpiece Cakeshop Case

Martin Naunov, Middlebury Class of ’17 and currently a Litigation Fellow in the Office of General Counsel at the Hearst Corporation, waited in line for several days three weeks ago in order to hear oral arguments in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case.   The case centers on whether compelling a cakeshop owner to bake a cake for a same-sex wedding violates the shop owner’s free speech rights.  Martin’s interest in the case derives in part from his senior honors thesis at Middlebury, which used the Masterpiece Cakeshop and Elane Photography v. Willock cases to explore the conflict between the interest in ensuring equal treatment of gays and lesbians in the marketplace, and the Constitution’s guarantee of religious liberty and free speech. Here’s Martin’s (slightly edited) report from his experiences listening to the oral arguments:

“In 2012, Charlie Craig and David Mullins visited Masterpiece, a bakery in Colorado, and requested a cake for their same-sex wedding. The owner of Masterpiece, Jack Phillips, declined their request, telling the couple that Masterpiece does not make cakes for same-sex weddings.

If Masterpiece were a bakery in a state like Texas, such rejection would have had no legal repercussions. Even though every state has a public accommodation law that prohibits discrimination on the basis of sex, race, and national origin, only 22 states extend this protection to sexual orientation discrimination. Colorado is one of these 22 states. As such, the same-sex couple sued and won.

Mr. Phillips, however, argues that the requirement to provide wedding cakes regardless of the couple’s sexual orientation, violates his rights to freedom of speech and free exercise of religion protected by the First Amendment. The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, is now before the U.S. Supreme Court. The significance of this case is evidenced by the attention it has gotten; more than a hundred amicus briefs have been filed and more than two dozen people, myself included, began camping outside the Court on Friday for a seat for the Tuesday’s oral arguments. Sometime around June this year, the Supreme Court is expected to answer the following question: Does the First Amendment shield a baker—or wedding vendors in general—from civil rights laws?

Relying on the compelled speech doctrine—which fundamentally means that the right to free speech embraces not just the right to speak but also the right not to—Jack Phillips argues that a requirement to create a cake for a same-sex ceremony compels him to convey endorsement of same-sex marriage, something at odds with his religious beliefs. He claims that, as an artist, he communicates through his cakes.

But if a baker is an artist that speaks through his commercial cakes, then who else can claim exemption from civil rights laws? This is the question that the Court’s liberal justices zeroed in on.

What about the jeweler who designs the rings? What about the hair stylist? The makeup artist? Justice Kagan asked during Tuesday’s oral arguments. “No,” responded Kristen Waggoner, who argued for the baker.  “[But] it’s called an artist. It’s the makeup artist.” Justice Kagan retorted, eliciting a round of laughter from the audience. More hypotheticals followed. According to Ms. Waggoner, tailors, chefs, and architects are generally not engaged in speech, and would therefore not be able to claim exemption from public accommodation laws. “Whoa!” Justice Kagan interjected. “The baker is engaged in speech, but the chef is not engaged in speech?”

“The reason we’re asking these questions,” Justice Breyer explained, “is because obviously we want some kind of distinction that will not undermine every civil-rights law, from the year two.”

The conservative justices, including the swing justice, Justice Kennedy, openly wondered whether Colorado’s anti-discriminatory law is tainted by religious animus.  “Tolerance,” Justice Kennedy lectured the state’s attorney, “is essential in a free society. And tolerance is most meaningful when it’s mutual.”

This comment made clear that Justice Kennedy sympathized with Mr. Phillips and encouraged speculation that he will side with the baker.

However sympathetic towards Mr. Phillips Justice Kennedy might be, the Justice also seems to be cognizant that a decision in the baker’s favor could set a perilous precedent with the potential to erode LGBT rights and undermine civil rights laws across the nation. During oral arguments, he expressed his concern that if the baker were to prevail, businesses would be able to put signs on their windows saying “we do not bake cakes for gay weddings.” Wouldn’t that be “an affront to the gay community?” he asked the government’s attorney rhetorically.

It is impossible to predict with anything even close to certainty how the swing Justice will vote. What is clearer, however, is that mustering Justice Kennedy’s vote in favor of the baker is likely contingent on the Court’s ability to come up with a clear limiting principle—some kind of ingenious “distinction” between Mr. Phillips and the many other businesses who would like to deny service to gay couples or other historically oppressed communities. A distinction that answers Justice Kagan’s question: how come the baker speaks but the chef doesn’t?

Now, many might wonder: What’s speech got to do with this? In other words, how did a case that clearly belongs in the docket of religious liberty find its way in free speech jurisprudence? The answer to this question has to do with the nature and the Court’s reading of both the Free Exercise Clause and the Free Speech Clause.

First, there are countless religious denominations and unique religious practices that could come in conflict with government regulations. (For example, one of my personal favorites is a 1985 case where the defendant claimed that dressing up like chicken in Court is part of his religious belief). As Justice Scalia wrote in Smith, the case that controls Free Exercise jurisprudence, “[t]o make an individual’s obligation to obey a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ [is to] permit him, by virtue of his beliefs, ‘to become a law unto himself.’” As such, the Court pronounced the following rule for determining whether a given law contravenes the Free Exercise Clause: “if prohibiting the exercise of religion…is not the object…but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” Since public accommodation laws have always been judged neutral and generally applicable, religious vendors stand little chance of obtaining exemptions under current Free Exercise doctrine.

Equally (if not more) interesting, however, is how we have arrived at the point where it is even conceivable that a requirement that businesses provide services on an equal basis raises a free speech issue.

The Court’s liberal justices repeatedly brought up the Supreme Court cases where entities like restaurants and universities claimed, without success, exemptions from rules that prohibited discrimination against black people and interracial couples. The truth is, however, that these plaintiffs made a Free Exercise argument, not a Free Speech one. Yes, allowing African Americans and whites to sit and eat together in your restaurant, especially in the South and during a time when this rarely happened, communicated at least some level of acceptance, if not endorsement, of racial integration. Yes, a requirement to serve African Americans compelled waiters to speak to and take orders from them. But no one even entertained the idea that just because the regulation indirectly necessitated some speech and expression, it raises a First Amendment Free Speech issue.

However, things have changed significantly since then and the Free Speech Clause has expanded into areas long deemed utterly unrelated to free speech. Today the typical First Amendment litigant is not a distributer of anti-draft pamphlets or a flag-burner but a commercial entity challenging a law that has very little to do with “freedom of speech” but a lot to do with business regulations. For example, in recent years, courts have upheld numerous First Amendment claims by companies against compelled commercial speech. The D.C. Circuit, for instance, found unconstitutional the FDA requirement that tobacco companies place graphic warning labels on cigarette packages. On First Amendment grounds, the Second District granted preliminary injunction against a Vermont law requiring labeling of dairy products derived from cows treated with genetically engineered growth hormone. According to a major pornography production company, the First Amendment shielded the company from laws that required their employees, porn actors, to wear condoms.

The major factor that has permitted this First Amendment expansionism is the common conflation between the everyday meaning of speech and “speech” within the meaning of “freedom of speech,” i.e. “speech” within the ambit of the First Amendment.

Namely, there are plenty of forms of speech that do not implicate “freedom of speech”: insider trading, illegal contracts, threats, blackmail, subpoena to testify, and so on. These forms of speech are not only not protected by the First Amendment; they are not covered by it in the first place. Discussing similar examples, Professor Schauer explains that “[i]t is not that regulation of such acts meets the heightened burden of justification implicit in the Free Speech Principle. Rather, such acts are not within the scope of the principle at all.”[1] In other words, it is simply not the case that every time a law restricts speech—or compels speech—it curtails “freedom of speech.”

As such, the answer to “Is this business speaking, be that literally or symbolically?” does not—or should not—decide the First Amendment issue. In the words of Justice Kennedy: “The problem for [the baker’s argument] is that so many examples [of other vendors also]…do involve speech. It means that there’s basically an ability to boycott gay marriages.” What courts should care about is whether compelling the business to do something—be that baking a cake or taking wedding photos, which could definitely entail speech—raises a free speech issue. As Professor Schauer explains, “[Speech] must be defined by the purpose of a deep theory of freedom of speech, and not by anything the word ‘speech’ might mean in ordinary talk.”[2]

This, too, however, is easier said than done.

[1] Fredrick Schauer, Free Speech: A Philosophical Enquiry 92 (1982)

[2] Fredrick Schauer, Free Speech: A Philosophical Enquiry 91-92 (1982)”