Does the application of Colorado’s public accommodations law to compel a cake maker to design and make a cake that violates his sincerely held religious beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment?1
There’s a Colorado law that prevents business from discriminating against the basis of race, religion, and sexual orientation, among other traits. So, a cake maker who sells cakes to the public cannot refuse to make a wedding cake for an interracial couple, for example.
Charlie Craig and David Mullins were planning to get married wanted a cake. Under the Supreme Court’s decision in Obergefell, they have a constitutional right to marry. They visited Masterpiece Cakeshop, owned by Jack Phillips. As a Christian, Mr. Phillips refused to sell a cake to Charlie and David.
The Colorado court sided with the gay couple, and the cake shop appealed to the Supreme Court.
The issue at the Supreme Court is whether the Colorado law barring discrimination compels Mr. Phillip’s speech to make a cake.
Arguments For the Cake Shop
The cake shop has a parade of horribles:
- Can an African American sculptor be forced to make a sculpture for a Klan rally? (Probably not, because being a Klan member isn’t a protected class.)
- Can an Opera singer be forced to sing at the Westboro Baptist Church?
The conservative justices at argument seemed to be concerned with the Colorado commission was biased against religious folks.
Justice Kennedy asked whether Colorado is being tolerant of the baker’s beliefs and whether a reasonable exemption can be made for the baker.
Arguments Against the Cake Shop
The Cakeshop couldn’t discriminate against an interracial couple, so why should they be allowed to discriminate against a gay couple?
- At argument, the Justice’s asked how far a rule in favor of the cake shop would extend. The wedding jeweler? The hairstylist? The make up artist? Cake shop doesn’t believe hairstylists, or the chef isn’t engaged in speech, but the cake maker is engaged in speech. What about the sandwich artist?
- The cake shop argued that the cake maker would have to make cakes for interracial couples, but the cake maker could not be forced to make cakes for an inter-religious couple.
This case attracted quite a bit of amicus support, including:
- The American Psychological Association: arguing that being gay is not a choice and gay people face significant stigma in society, which is psychologically harmful.
- Lots of briefs from cities and localities: arguing federalism and that there are many local, generally applicable ordinances that will get challenged if the cake shop wins.
- Religious organizations arguing that a win for the cake shop might mean religious discrimination for them.
- Chefs, bakers and the like, including Anthony Bourdain, and Padma Lakshmi, arguing that chefs and bakers should have to comply with generally applicable laws and that just because cooking involves skill doesn’t mean it should be afforded First Amendment protection.
- The brief of David Boyle, a lone lawyer from Florida, in support of neither party.
- But see also the brief of Richard Lawrence, another lone lawyer who believes marriage is between one man and one women and therefore is interested in this case.
- Ken Paxton, on behalf of the State of Texas, who believe cakes are artistic works created by unique snowflakes and are entitled to freedom of expression.
- The Christian Legal Society, who argues that the Colorado law is neither generally applicable nor neutral.
- Aaron and Melissa Klein, who opened “Sweet Cakes by Melissa” in Oregon. They were fined for not creating a cake in Oregon for a gay couple and shut down their bakery.
- Various conservative medical groups, such as American College of Pediatrics (not to be confused with the American Academy of Pediatrics), American Association of Pro-Life Obstetricians and Gynecologists and Christian Medical and Dental Associations, who argue that should the Court find for the gay couple, they might be forced to counsel their patients on the availability of abortions.
- Various religious colleges, who argue that a win for the gay couple might mean they have to allow gay people to get educations at their schools.
- The brief of Christian photographers, who don’t want to photograph any gay weddings.