Photo courtesy Masterpiece Cakeshop, Facebook.
UPDATE: Excellent summary of today’s events: 12.5.17
Recommended Citation: Amy Howe, Argument analysis: Conservative majority leaning toward ruling for Colorado baker (UPDATED), SCOTUSblog (Dec. 5, 2017, 12:18 PM), http://www.scotusblog.com/2017/12/argument-analysis-conservative-majority-leaning-toward-ruling-colorado-baker/
United States Supreme Court Docket, December 5, 2017
16-111 MASTERPIECE CAKESHOP V. CO CIVIL RIGHTS COMMISSION
QUESTION PRESENTED:
Jack Phillips is a cake artist. The Colorado Civil Rights Commission ruled that he engaged in sexual orientation discrimination under the Colorado Anti- Discrimination Act (“CADA”) when he declined to design and create a custom cake honoring a same-sex marriage because doing so conflicts with his sincerely held religious beliefs.
The Colorado Court of Appeals found no violation of the Free Speech or Free Exercise Clauses because it deemed Phillips’ speech to be mere conduct compelled by a neutral and generally applicable law. It reached this conclusion despite the artistry of Phillips’ cakes and the
Commission’s exemption of other cake artists who declined to create custom cakes based on their message. This analysis (1) flouts this Court’s controlling precedent, (2) conflicts with Ninth and Eleventh Circuit decisions regarding the free speech protection of art, (3) deepens an existing conflict between the Second, Third, Sixth, and Eleventh Circuits as to the proper test for identifying expressive conduct, and (4) conflicts with free exercise rulings by the Third,
Sixth, and Tenth Circuits.
The question presented is: Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.
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Courtesy ACLU:
On December 5, 2017, the United States Supreme Court will hear oral arguments on whether a business open to the public has a constitutional right to discriminate.
David Mullins and Charlie Craig visited Masterpiece Cakeshop in July 2012, with Charlie’s mother, to order a cake for their upcoming wedding reception. Dave and Charlie planned to marry in Massachusetts and then celebrate with family and friends back home in Colorado. But bakery owner Jack Phillips informed them that the bakery wouldn’t sell wedding cakes to same-sex couples.
Longstanding Colorado state law prohibits public accommodations, including businesses open to the public such as Masterpiece Cakeshop, from refusing service based on characteristics like race, religion, orsexual orientation. Dave and Charlie filed complaintswith the Colorado Civil Rights Division contendingthat the bakery violated
Colorado’s Anti-Discrimination Act. Following an investigation and hearings, the Colorado Civil Rights Commission determined that the bakery illegally discriminated against Dave and Charlie when it refused them service.
On August 13, 2015, the Colorado Court of Appeals unanimously affirmed the Commission’s order, finding that the bakery discriminated because of sexual orientation in violation of state law. The court also concluded that application of Colorado’s Anti-Discrimination Act did not infringe the bakery’s freedom of speech or free exercise of religion. The Colorado Supreme Court denied review, and the United States Supreme Court granted certiorari on June 26, 2017.
Status: After victories for equality at every stage of the case, the United States Supreme Court will hear oral argument on December 5, 2017. In advance of oral argument, more than 40 friend-of-the-court briefs were filed in support of Dave and Charlie.