What’s an evangelical Christian baker to do when asked to design and decorate a custom cake for a gay wedding? If he complies, he violates his religious objections to same-sex marriage. If he refuses, he’s prosecuted for violating the public accommodation laws. So his mom-and-pop bakeshop has to stop making wedding cakes altogether, at the expense of nearly half their business.
The case started in 2012 when Colorado couple Charlie and Dave asked Jack Phillips, the owner and cake artist of Masterpiece Cakeshop, to create a custom cake for their wedding.
Phillips explained in his deposition, “I do not create wedding cakes for same-sex weddings because of my religious beliefs, and also stated that Colorado does not allow same-sex marriages [as was the case in 2012].
“As a follower of Jesus, and as a man who desires to be obedient to the teachings of the Bible, I believe that to create a wedding cake for an event that celebrates something that goes directly against the teachings of the Bible would have been a personal endorsement and participation in the ceremony and relationship that they were entering into.
“I would be pleased to create any other cakes or baked goods for Charlie and David, or any other same-sex couples.”
Charlie and Dave’s deposition states that they left the store and cried. A campaign of hostile phone calls and picketing followed.
Engaged gay couple Dave Mullins, second from left, and Charlie Craig, left, were joined by a small group of supporters in Lakewood on Saturday, August 4, 2012 to protest and boycott the Masterpiece Bakeshop. — The Denver Post
The couple filed a complaint with the Colorado Civil Rights Commission, which found that Phillips had violated the public accommodation laws that prohibit withholding goods and services based on sexual orientation. “Freedom of religion used to justify discrimination is a despicable piece of rhetoric,” said one of the Commissioners.
The Colorado federal court upheld the ruling, holding that opposition to same-sex marriage “is tantamount to discrimination on the basis of sexual orientation.” The case went to the U.S. Supreme Court, which heard oral argument on December 5th.
Charlie and Dave obtained a wedding cake from another bakery. A group of cake artists filed with the Supreme Court an “Amicus Brief in Support of Neither Party,” describing the symbolism and artistry of wedding cakes and explaining, “By incorporating the familiar rainbow symbol in the batter, the multi-colored cake layers reveal that the cake is not just for a wedding but for a same-sex union.”
The ACLU, representing Dave and Charlie, says this is a straightforward case of a retail business unlawfully refusing to sell a product to persons based on their sexual orientation. They argue that if exceptions to the public accommodation laws are allowed for expressive goods or religious objections, bakeries will deny birthday cakes to black children, architects will refuse to remodel Latino homes and hair salons will “refuse to style the hair of a girl born in Mexico for her quinceañera,” if they oppose Mexican immigration.
And if that’s not bad enough, the baker is represented by the Alliance Defending Freedom, a conservative Christian organization that the Southern Poverty Law Center has dubbed a hate group.
But the First Amendment frowns on forcing people to express messages they disagree with, no matter how worthy the message or “despicable” the disagreement. Whether it’s a Jehovah’s Witness compelled to display a license plate saying “Live Free or Die;” a newspaper compelled to give a “right of reply” to political candidates it opposes; a gas company compelled to include a third party’s literature in its gas bills; or a St. Patrick’s Day parade compelled to include the banner of an LGBT advocacy group (Hurley v. Irish-American Gay, Lesbian and Bisexual Group [“GLIB”]), the principle is that the First Amendment prohibits the state from forcing a person to convey a message he objects to. And that objecting to a protected group’s message isn’t the same as discriminating against that group.
In Hurley the Supreme Court unanimously rejected the argument that a parade is merely a recreational activity, so that refusing to include GLIB was the same as a restaurant refusing service because of race. The Court agreed that the parade was subject to the public accommodation law, but also found it to be a form of symbolic expression whose message would be altered against the organizers’ will if they were compelled to include the GLIB message. The First Amendment makes no judgments about the worthiness of the message: no matter how enlightened it is, a speaker can’t be compelled to endorse it.
hurley-v-irish-american-gay-lesbian-and-bisexual-group-of-boston
The ACLU insisted in their brief and at oral argument that Phillips is guilty of refusing to “sell” “baked goods” to Dave and Charlie. As if he were a cashier at the local 7-11 forbidding them to buy an Entenmann’s cake.
But not even Dave and Charlie would deny that a wedding cake isn’t just a baked good, but a traditional symbol of a marriage celebration. Cutting the cake together, feeding it to each other and distributing it to the guests is the couple’s first joint public act as newlyweds, proclaiming their status as a union. Couples often save a piece of their wedding cake for years afterwards, making it a kind of secular relic. Which is why people may pay hundreds or even thousands of dollars for a custom-made wedding cake instead of getting it from the 7-11.
Nor is it accurate to call Phillips’s objection a refusal to “sell.” Given his personal involvement in designing and creating his custom wedding cakes in consultation with the nuptial couple, the cake can reasonably be perceived as expressing his “personal endorsement and participation in the ceremony and relationship that [the couple] is entering into.” That message is completely altered if the ceremony is a same-sex marriage that violates his beliefs. He’s not like a cable company that merely provides a venue for numerous viewpoints and can easily disclaim endorsement of any of them. (Needless to say, the cake with the disclaimer footnote pictured above is imaginary).
So he’s not the same, as Justice Kagan suggested at oral argument, as a hairdresser creating “a wonderful hairdo.” A hairdo, however wonderful, isn’t intended or viewed as conveying a message. Nor is a custom-made wedding cake just something to eat, as Justice Sotomayor opined, asking, “when have we ever given [First Amendment] protection to a food?”
In Obergefell v. Hodges, where the Supreme Court recognized same-sex marriage as a fundamental right, the Court also expressly recognized the First Amendment right not to “condone” it on religious or other grounds. Just as objectors can’t bar same-sex couples from getting married, the advocates of same-sex marriage can’t invoke the power of the State to penalize people who express objections, wrongheaded though they may be.
Discrimination against persons is terrible, but that’s not what this case is about. Phillips, like the Jehovah’s Witness who went to jail rather than drive with a license plate saying “Live Free or Die,” is upholding the right of all of us, of whatever gender, color or religion, not to be compelled to express a message we oppose.
Here’s Phillips’s account: Youtube video
The briefs (including the Cake Artists’ amicus) and oral argument can be found on Scotusblog.
Appellate Squawk 
this is what David Cole argued in response to Justice Alito’s question about a private university with a religious history but no.affiliation’s right to deny married student housing to a same-sex married couple:
MR. COLE: Well, I think under this
Court’s doctrine in Employment Division versus
Smith, the question would be, is it a generally
applicable neutral law? And if it’s a
generally applicable neutral law, there would
not be a free exercise question at all. Right?
And so — and — and the reason for
that, as Justice Scalia said in — in
Employment Division versus Smith, is equally
applicable here.
Once you open this up, once you say
generally applicable regulations of conduct
have exceptions when someone raises a religious
objection, or in this case have objections
where someone raises a speech objection, you’re
in a world in which every man is a law unto
himself.
And so the only sensible way to
approach this is to say if the state is
targeting religion, then we’re going to be very
careful about protecting religion. And if the
state is targeting the message, is targeting
the content of speech, then we’re going to be
very careful about protecting.
But when the state is regulating
conduct neutrally, unrelated to expression,
which is what this Court has already said is
the case with respect to public accommodations,
then we can have a world in which everybody who
raises an objection — otherwise we would live
in a society in which businesses across this
country could put signs up saying we serve
whites only, music lessons for Muslims need not
apply, passport photos not for the disabled.
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Hey, thanks for commenting! We were afraid you weren’t speaking to us. But with all due respect, serving, giving music lessons or taking passport photos aren’t protected expression. Requiring those services to be made available to all doesn’t compel anyone to express an unwanted point of view. No one is saying the public accommodations laws are unconstitutional on their face. But when they’re applied to require an artist – even a cake artist – to express a message he disagrees with, it violates the First Amendment. In our humble opinion.
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“the Southern Poverty Law Center has dubbed a hate group”
The Southern Poverty Law Center says words “Merry Christmas” are Hate Speech.
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Sorry to hear that. They used to be known for defending indigent people on death row. Just like the ACLU used to be known for defending freedom of speech.
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Um.. no… that’s just Matt Staver’s (Christian Rights Activist) spin on reality.
What the SPLC does is monitor the tweets of “a community of far-right Twitter users” to see what they’re talking about. And yes, they were talking about #MerryChristmas last week. Surprise!
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You wrote: Given his personal involvement in designing and creating his custom wedding cakes in consultation with the nuptial couple, the cake can reasonably be perceived as expressing his “personal endorsement and participation in the ceremony and relationship that [the couple] is entering into.”
This is factually inaccurate in this case. This baker admitted in an affidavit that he only personally designed and made a majority of the wedding cakes. And, upon his decision to remove “wedding cakes” from his corporation’s menu, he fired 6 out of his 10 employees – so they were clearly involved in the wedding cake aspect of the business. IN OTHER WORDS, he could’ve just assigned the task to his employees – how can a cake made by other employees of the corporation be perceived by anyone as HIS PERSONAL ENDORSEMENT? Or, for the matter, he could’ve just subcontracted the job out to a different bakery. These are just some of his logical, LEGAL solutions.
In addition, such a statement does not comport with Supreme Court precedent (Spence v. Washington and Texas v. Johnson) of when conduct is considered speech worthy of 1st Amendment protection. In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, the court is to ask whether “an intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.”
SCOTUS applied this examination in Rumsfeld v FAIR, another “compelled speech” challenge to an anti-discrimination mandate. In that case, SCOTUS ruled against a consortium of law schools who tried to use a “compelled speech” argument – that having to let the military recruit on campus was sending a message that the law schools supported the military’s “Don’t Ask Don’t Tell” policy. SCOTUS ruled that the mandate didn’t require speech at all – it governed conduct only; and the only message received by others was that the law schools were obeying the law in order not to be punished.
Now, applying Johnson in this case. THERE IS NOT A GREAT LIKELIHOOD THAT A MESSAGE WILL BE RECEIVED THAT THE OWNER OF A COMMERCIAL BAKERY MAKING/SELLING A WEDDING CAKE PERSONALLY APPROVES OF ANYONE’S MARRIAGE. There’s no history (and nor was any evidence provided) of customers perceiving such a message when they purchase a wedding cake. The overwhelmingly majority of viewers of the cake (the wedding guests and catering staff) won’t even know the identity of the bakery (never mind the the identity of the owner or the employees who actually made the cake) – the only message they’ll perceive with the respect to the bakery is that a commercial transaction had taken place. And the bakery’s employees (who were required, as part of the bakery’s punishment, to be educated about the law) will perceive the message (just as in FAIR) that the bakery is just obeying the law. In addition, Colorado’s law doesn’t require this baker to say anything and doesn’t prohibit him from saying anything; he’s free to provide any kind of disclaimer (such as a notice in his store or on the wedding cake box) that the sale of a cake doesn’t constitute the bakery’s endorsement of any event at which the cake is eaten. He’s also free to discuss his objections to same sex marriage (and post them in his store or on his website) with anyone – including any customer.
PS: The reference to Hurley is inapt. Even in the text of Hurley, SCOTUS stated that the Massachusetts’ public accommodations laws passes 1st Amendment muster. The issue was that MA’s application to such law to a private group (i.e., not a public accommodation) organizing a parade was “peculiar”.
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Of course Phillips’s custom wedding cakes are attributable to him! They’re not supplied anonymously like cakes from a national supermarket, but commissioned from him personally by a particular customer for a particular, local wedding. Every artist from Giotto to Banksy used assistants, but that doesn’t make the artists any less the authors of their works or their message any less attributable to them.
Hurley is right on point. Contrary to your misreading, the Supreme Court did indeed find the St. Patrick’s Day parade to be a public accommodation, so that the organizers wouldn’t have been allowed to exclude any individual for being LGBT. Nor was it alleged that they did. Justice Souter, writing for a unanimous court, found that Massachusetts had applied the public accommodation law in “a peculiar way” to require the parade to include a message, namely support for the LGBT cause, which the organizers didn’t want to convey. The holding of Hurley is that the public accommodations laws can’t be used to violate a speaker’s “autonomy to choose the content of his own message.”
Hurley also explains the difference between being forced to appear to agree with a message, and being a mere venue for others’ speech. There’s an obvious difference between accepting a commission to create a cake to celebrate an event and providing rooms for recruiters, as in FAIR.
The argument that Phillips would only be perceived as just following the law so as not to be punished begs the question of whether the law has been constitutionally applied. The Jews who wore yellow stars during the Nazi era were just following the law so as not to be punished, but such compelled expression is precisely what the First Amendment forbids.
As for the idea that Phillips could put a disclaimer on the cakebox — well, why not on the cake itself? As illustrated supra.
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A little off topic, but I thought you might like it.
Dear Donald: Norwegians are OK. I’d say they’re fine, But what about the Carusos, the Steens and the Steins, The fryers of latkas, the brewers of wines? What of inventors of things that we use? What of the Muslims, the Catholics, the Jews? What of the masses of hungry and poor, Whose descendants wind up owning second homes at the shore? What of the opera? The theatre and jazz? The yearning for freedom that everyone has, Who has ever left homeland and fought his way here, So his kids wouldn’t live in perpetual fear? We should give this up in favor of the blonde and the tall? Well, they don’t want to come here. They’ve already got it all. Charlie Blakeley (a real New Yorker)
Sent from my iPhone
>
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Right on! If your country is a shithole (to use President Donald’s term), that’s all the more reason to emigrate.
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