January 11, 2018, Trial News | The American Association For Justice Archive

January 11, 2018, Trial News

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SCOTUS weighing free speech, public accommodations protections in Cakeshop case

Mandy Brown

photo of two men cutting a wedding cake

The U.S. Supreme Court has heard oral arguments in the high-profile Masterpiece Cakeshop case to determine whether the First Amendment protects a retail baker with religious objections to same-sex marriage from being required to make a wedding cake for a same-sex couple. The couple’s attorney focused on the state’s right to protect its citizens from discrimination, while the baker’s attorney argued that each of the baker’s custom-made cakes is an “artistic expression” and protected speech.

The U.S. Supreme Court has heard oral arguments in the high-profile Masterpiece Cakeshop case to determine whether the First Amendment protects a retail baker with religious objections to same-sex marriage from being required to make a wedding cake for a same-sex couple. (Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, No. 16-111 (U.S. oral arg. Dec. 5, 2017).)

In 2012, while planning their wedding reception, David Mullins and Charlie Craig visited Masterpiece Cakeshop in Lakewood, Colo., owned by baker Jack Phillips, who specializes in custom cakes. After learning the two men wanted to purchase a wedding cake, Phillips refused to serve them, saying that he opposed same-sex marriage on the basis of his religious beliefs and would not create a custom cake celebrating one. The couple filed a complaint with the Colorado Civil Rights Commission alleging a violation of the Colorado Anti-Discrimination Act, which prohibits public retailers from refusing to serve customers based on protected characteristics such as race or sexual orientation.

The commission found in the couple’s favor and ordered Phillips to retrain his staff and to create wedding cakes for same-sex couples if he creates wedding cakes for heterosexual ones. A state appellate court later affirmed the commission’s decision, and the state high court denied Phillips’s petition for a writ of certiorari. The U.S. Supreme Court granted Phillips’s petition for a writ of certiorari in June 2017.

In the Dec. 5 oral arguments, Phillips’s attorney, Kristen Waggoner, claimed that each of Phillips’s custom-made cakes is an “artistic expression” and protected speech under the First Amendment. Requiring him to create a custom cake for the same-sex wedding he opposes, Waggoner argued, would be compelled speech and a violation of Phillips’s First Amendment rights.

Justices Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg expressed strong reservations that validating this theory would effectively make it impossible to know what activities are protected speech. They asked Waggoner in quick succession whether a florist, jeweler, hairstylist, tailor, and other professionals are engaged in artistic expression and focused on how expanding the definition of protected speech in this way could negatively affect the legal protections intended to shield minority groups from discrimination. Their concerns were summarized by Justice Stephen Breyer, who noted that “the reason we’re asking these questions is because obviously we would want some kind of distinction that will not undermine every civil rights law” previously passed in the United States.

Appearing on behalf of the United States as amicus curiae supporting Phillips, U.S. Solicitor General Noel Francisco attempted to address this question by arguing that the Court’s ruling would actually have a narrow impact on a “small group of individuals”—namely, business owners who “engage in speech in connection with an expressive event like a marriage celebration to which they’re deeply opposed.”

“The cake shop’s characterization of the exemption it is seeking as ‘limited’ and ‘narrow’ is untrue,” said Leslie Cooper, senior staff attorney for the LGBT & HIV Project at the American Civil Liberties Union, which represents the couple. “If the court were to hold for the first time that people who object to complying with nondiscrimination laws can claim a religious opt-out or that they are exempt if their business involves artistry or creativity, that would gut our nation’s civil rights laws. People hold religious beliefs about all sorts of things, not just marriage for same-sex couples, and courts cannot advantage religious belief A over religious belief B. It’s simply not permitted by the Constitution. And as several of the justices noted during oral arguments, our society has a large number of artists and artisans who have set up shop as public accommodations to style hair, design buildings, bake cakes, and on and on—if a bakery is entitled to an exemption, why not all the others? There’s no way to draw the line.”

Frederick Yarger, representing the state of Colorado, and David Cole, representing Mullins and Craig, focused on the state’s right to protect its citizens from discrimination. They noted the Colorado legislature’s research and outreach before voting to add sexual orientation to the characteristics protected under the state’s anti-discrimination law and emphasized that, after freely choosing to operate a retail bakery open to the public, Phillips must then abide by the state’s public accommodations law.

“When groups of individuals are denied the opportunity for full civic participation by being subjected to discrimination in employment, housing, public accommodations, and other contexts, that’s damaging not only to those excluded communities but to society as a whole,” said Cooper. “Anti-discrimination laws get passed when there’s recognition at the local, state, or federal level that people are being discriminated against based on a characteristic that has no relationship to one’s ability to do a job or be a good customer or tenant. That’s exactly what happened in Colorado. The state identified a problem of discrimination based on sexual orientation and after thoroughly investigating it, decided to add that characteristic to its anti-discrimination law. This is not to say that the history of discrimination against African-Americans, minority faith groups, LGBT persons, and others has been the same. The point is that governments have a strong interest in ending discrimination where it exists.”

While the petitioners’ and respondents’ oral arguments focused primarily on Phillips’s free speech rights under the First Amendment, Chief Justice John Roberts and Justices Samuel Alito, Neil Gorsuch, and Anthony Kennedy repeatedly asked the respondents how the rights of individuals with sincerely held religious objections to same-sex marriage should be protected. Kennedy expressed concern that the state commission’s ruling against Phillips had been tainted by an anti-religion bias, stating that: “It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’s religious beliefs.” Much of the media coverage of the oral arguments has focused on this statement, with commentators arguing it could be an indication that Kennedy—the court’s powerful swing vote—might be inclined to vote in Phillips’s favor or to return the case to the commission for a rehearing before a new panel.

For Cooper, however, the key legal issue before the Court remains whether to uphold a state’s ability to enforce its anti-discrimination law and protect its citizens from harm. “The fact that Mr. Craig and Mr. Mullins were able to order a wedding cake from another shop does not erase the injury they suffered. A key purpose of public accommodations laws is to protect against the humiliation of being refused service because who you are is considered unacceptable. The Supreme Court rejected similar challenges to the enforcement of non-discrimination laws against business owners who objected to serving African-American customers. Whether other restaurants or hotels would have served these customers was beside the point. Our civil rights laws are about protecting individual dignity as much as access to goods and services.”