“Let Them Eat Cake!” … Well, Maybe Not All of Them: The Supreme Court May Take a Huge Slice Out of Anti-Discrimination Legislation

“Let Them Eat Cake!” … Well, Maybe Not All of Them: The Supreme Court May Take a Huge Slice Out of Anti-Discrimination Legislation

Reba Letsa*

The dispute over a wedding cake that ultimately made its way up to the Supreme Court of the United States began in 2012 at Masterpiece Cakeshop in Lakewood, Colorado.  Ariane de Vogue, Supreme Court Set to Take Up LGBT Rights and Religious Liberty, CNN (Sept. 5, 2017, 1:07 AM), http://www.cnn.com/2017/09/05/politics/supreme-court-lgbt-rights-religious-liberty/index.html.  David Mullins and Charlie Craig, a couple who were in the process of planning their upcoming nuptials, visited the bakery and requested a custom cake.  Id.  The owner, Jack Phillips, informed them that he would be unable to design a cake for a same-sex wedding due to his religious views on same sex-marriage.  Id.  Mullins and Craig subsequently filed complaints against the bakery with the Colorado Civil Rights Division, which ruled in their favor, citing a violation of the Colorado Anti-Discrimination Act.  Id.  Colorado’s Anti-Discrimination Act provides in pertinent part:

It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation . . . .

Colo. Rev. Stat. Ann. § 24-34-601(2)(a) (West 2018).


The Colorado Civil Rights Commission affirmed the cease and desist order issued by an Administrative Law Judge and ruled against Phillips, who appealed to the Court of Appeals of Colorado.  Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 276–77 (Colo. App. 2015).  The court upheld the commission’s ruling, holding that there was enough of a nexus between the bakery’s refusal to provide the customized cake and the couple’s sexual orientation to constitute a violation of the Act.  Id. at 283.  Furthermore, the cease and desist order imposed upon the bakery did not compel speech, nor abridge Jack Phillips’s First Amendment right to free exercise of religion.  Id. at 288, 291–92.  With oral arguments completed on December 5, 2017, the Supreme Court will issue a decision that could potentially set a dangerous precedent, which would allow businesses that are open to the public to refuse services to patrons simply because of their sexual orientation.  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, SCOTUSblog,  http://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ (last visited Mar. 14, 2018).


With the support of the ACLU, Mullins and Craig posit that the Colorado statute, which was enacted to prevent the discrimination of marginalized groups in places of public accommodation, is constitutionally sound.  See Brief for Respondents Charlie Craig and David Mullins at 15–28, Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 137 S. Ct. 2290 (2017) (No. 16-111).  In their Brief in Opposition to Masterpiece Cakeshop’s Petition, the Respondents rely on the Supreme Court’s decision in Rumsfeld, in which an association of law schools and faculty posed a constitutional challenge to the Solomon Amendment.  Brief in Opposition at 7–10, Masterpiece Cakeshop, Ltd., 137 S. Ct. 2290 (No. 16-111); Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47 (2006).  The Solomon Amendment permitted the federal government to withhold funding from institutions that refused military recruiters access to students.  Rumsfeld, 547 U.S. at 51.  The law schools believed that allowing an organization with controversial policies, such as the military’s “Don’t Ask, Don’t Tell” policy, to speak to its students implied that the institution was in support of the policy.  Id. at 64–65.  The Court rejected this argument in Rumsfeld on the basis that students are able to make the distinction between an institution endorsing a particular message and permitting speech based solely upon an equal access policy.  Id. at 65 (citing Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 250 (1990)).

The Court of Appeals of Colorado used the same rationale in ruling against Phillips.  See Craig, 370 P.3d at 286–87.  The court reasoned that “it is unlikely that the public would view Masterpiece’s creation of a cake for a same-sex wedding celebration as an endorsement of that conduct.  Rather, we conclude that a reasonable observer would understand that Masterpiece’s compliance with the law is not a reflection of its own beliefs.”  Id. at 286.

In 2013, the Supreme Court of New Mexico, in deciding Elane Photography, LLC. v. Willock, addressed a similar issue when a wedding photographer who refused to photograph same-sex weddings was found to have violated a state anti-discrimination statute.  309 P.3d 53, 60 (N.M. 2013).  The court distinguished Elane Photography from prior decisions such as Wooley v. Maynard, 430 U.S. 705 (1977), and West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), because, in those cases, the challenged legislation compelled speech, while in Elane Photography, the petitioner was not required to speak or affirm the government’s message.  Id. at 64–65.  The law merely stated that if Elane Photography wanted to operate and maintain a business open to the public, it could not discriminate against potential clients on the basis of their sexual orientation.  Id. at 60.  Based upon the factual similarities in Craig and in Elane Photography, it is likely that the Supreme Court will determine that although the nature of Phillips’s business does largely involve creativity and artistic expression, since he chooses to commercialize his creations, they must be made available to everyone.  See id.

Furthermore, Mullins and Craig argue that if the Supreme Court were to side with the baker on First Amendment grounds, the decision could establish a loophole for businesses that involve some form of artistic expression to use their religious beliefs as a pretext to discriminate against other marginalized groups.  The Right to Equal Treatment: Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, ACLU (Sept. 14, 2017, 1:30 PM), https://www.aclu.org/blog/lgbt-rights/lgbt-nondiscrimination-protections/right-equal-treatment-masterpiece-cakeshop-ltd-v.  If the Supreme Court rules in favor of Masterpiece Cakeshop, this decision could become the slippery slope that would ultimately grant businesses that are open to the public the constitutional right to discriminate.


The First Amendment of the United States Constitution proscribes that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . . .”  U.S. Const. amend. I.  The provisions of the First Amendment have also been incorporated against the states through the Due Process Clause of the Fourteenth Amendment.  Gitlow v. New York, 268 U.S. 652, 666 (1925).  Jack Phillips, owner of Masterpiece Cakeshop, argues that he has a constitutional right to refuse to prepare a custom cake for a ceremony that his religion does not support.  See Client Story: Jack Phillips, Alliance Defending Freedom, https://www.adflegal.org/detailspages/case-details/masterpiece-cakeshop-v.-craig (last visited Mar. 14, 2018).  Phillips compares the amount of artistic expression and creativity that goes into making his wedding cakes, to an artist sketching on canvas or a sculptor using clay and deems that the cake sends the message using his voice that the marriage should be celebrated.  Brief for Petitioners at 1–2, Masterpiece Cakeshop, Ltd., 137 S. Ct. 2290 (No. 16-111).  Furthermore, Phillips argues that that being forced to use his art to promote a message that he does not agree with is tantamount to being compelled to speak the message.  Id. at 16–35.

As authority for his proposition, Phillips cites Wooley v. Maynard, a United States Supreme Court case in which a New Hampshire couple, who were devout Jehovah’s Witnesses, obscured the motto “Live Free or Die” from visibility on the license plates of their jointly owned non-commercial family vehicles because it conflicted with their religious beliefs.  430 U.S. 705, 707 (1977).  The Court ultimately sided with the couple, holding that the First Amendment protects the rights of individuals and permits them to have a point of view which deviates from the majority, as well as that a state cannot mandate that individuals perpetuate an ideology which they find to be morally objectionable.  Id. at 715.

In deciding Wooley, the Court relied heavily on Barnette, which involved religious opposition to a West Virginia school board action compelling public school children to stand and salute the American flag.  Id. at 714–15; W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 626, 629 (1943).  The Barnette Court articulated the proposition on which Phillips bases his argument; specifically, the Court stated that the right to speak freely and the right to not speak at all are protected by the First Amendment.  319 U.S. at 642.

The United States Department of Justice has also submitted an amicus curiae brief to the Supreme Court supporting the Colorado baker, arguing that his cakes are a form of expression and the government cannot compel him to utilize his talent to support something he does not believe in.  Robert Barnes, In Major Supreme Court Case, Justice Dept. Sides with Baker Who Refused to Make Wedding Cake for Gay Couple, Wash. Post (Sept. 7, 2017), https://www.washingtonpost.com/politics/courts_law/in-major-supreme-court-case-justice-dept-sides-with-baker-who-refused-to-make-wedding-cake-for-gay-couple/2017/09/07/fb84f116-93f0-11e7-89fa-bb822a46da5b_story.html?utm_term=.9229eb6113c6.  To prevail on his First Amendment defense, Phillips will likely have to make a sufficient showing that the amount of creativity and detail that go into making his cakes is far greater than that of any business that has previously challenged similar laws on the same grounds.


Considering precedent, it is unlikely that Masterpiece Cakeshop will prevail.  Several businesses have also challenged similar state laws, citing religious beliefs as their reasoning, but at least one court has upheld its state anti-discrimination law and held that preventing or remedying discrimination is a compelling interest.  See Elane Photography, 309 P.3d at 70. However, the decision in this case has the potential to either mark the Supreme Court’s commitment to equality and social justice or contribute to the erosion of state legislation enacted to prevent the discrimination of targeted groups.  This is a pivotal case either way you slice it.


*Reba Letsa is a second-year law student at the University of Baltimore School of Law, where she currently serves as a staff editor for Law Review.  Reba is also a member of the Royal Graham Shannonhouse III Honor Society.  In the fall of 2017, Reba worked in the District Court Screening Unit of the Montgomery County State’s Attorney’s Office.  For the summer of 2018, Reba will join Baker, Donelson, Bearman, Caldwell & Berkowitz P.C. as a summer associate.

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