Oklahoma Bar Journal
The Cake and the Constitution
By Micheal Salem
In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,1 the U.S. Supreme Court initially faced discrimination claims based on sexual orientation and gender identity pitted against First Amendment defenses of “free speech” and “free exercise.” In its decision, the Supreme Court deferred questions about the enforcement of laws regarding sexual orientation or gender identity and instead focused on a claim of anti-religion bias against the defendant expressed by members of the Colorado Civil Rights Commission during their proceedings. In determining the commission displayed hostility to religion in its decision, the Supreme Court reversed the Colorado Court of Appeals2 (CCOA) decision that affirmed the commission’s finding that Masterpiece Cakeshop discriminated on the basis of sexual orientation.
It was unusual that the CCOA decision attracted six amici curiae briefs and also drew the attention of the Colorado attorney general. After the grant of certiorari by the Supreme Court, an astounding 95 different amici briefs were filed by a wide variety of secular and religious organizations and individuals, including numerous law professors.
With such legal firepower in play, a question may be asked, “Did good cakes make bad law?” The answer is only partial since the Supreme Court did not decide any claims of discrimination on the basis of sexual orientation or gender identity, but did instead issue a warning to judicial fact finders that it is a violation of the Free Exercise Clause to base a decision on an impermissible hostility toward the sincere religious beliefs of litigants.
FACTS AND PROCEDURAL HISTORY
The facts of the case arise out of a very brief interaction on July 12, 2012, when Charlie Craig and David Mullins, accompanied by Craig’s mother Deborah Munn, went to Masterpiece Cakeshop to consult with its owner Jack C. Phillips about a cake for a same-sex wedding reception.
What Happened at Cake Shop Did Not Stay at the Cake Shop
Craig and Mullins planned to legally marry in Massachusetts where same-sex marriages were legal and then return to Colorado to celebrate with friends and with a cake from Masterpiece Cakeshop as part of that gathering.3
It is unclear from the record whether Craig and Mullins sought a custom wedding cake within the special expertise of Phillips, or a more nondescript cake for “our wedding.”4 The CCOA decision says the couple “requested that Phillips design and create a cake to celebrate their same-sex wedding” and that “Phillips declined, telling them that he does not create wedding cakes for same-sex weddings because of his religious beliefs.”5
Phillips instead said he offered them any of his other baked goods in the store.6 Phillips contends he “offered to make any other cake for them.”7 The now unhappy couple (and apparently equally unhappy mother) left the store.
In light of Phillips’ blanket refusal, there were no discussions about details of the design of the cake. As the administrative law judge in the Colorado administrative proceedings found, “[f]or all Phillips knew at the time, [Mullins and Craig] might have wanted a nondescript cake that would have been suitable for consumption at any wedding.”8
Phillips claimed that his custom cakes were artistic endeavors of expression. The joint appendix in the Supreme Court contains photographic examples of wedding cakes designed by Phillips and sold by Masterpiece Cakeshop.
The happy day was not ruined as Craig and Mullins apparently found a cake elsewhere at no cost.9 In the meantime they filed a charge of sexual orientation discrimination with a division of the commission relying on the Colorado Anti-Discrimination Act (CADA),10 which forbids discrimination based on “sexual orientation” in public accommodations.11
After a review, the division of the commission found probable cause for a violation of the statute. Craig and Mullins then initiated a formal complaint with the Office of Administrative Courts alleging discrimination because of sexual orientation in a place of public accommodation in violation of Section 2434601(2) of CADA.
CCOA said there was no dispute of material facts. Masterpiece Cakeshop and Phillips admitted the shop was a place of public accommodation, but stated they refused to sell the cake because of the intent to use it as part of a same-sex marriage ceremony. After cross-motions for summary judgment, the administrative law judge issued a long decision finding in favor of Craig and Mullins. This order was affirmed by the commission.12 There were certain remedial actions ordered by the administrative law judge including policy changes, employee training and compliance reporting.
Both Phillips and Masterpiece Cakeshop appealed. CCOA affirmed the commission and the Colorado Supreme Court denied certiorari.13
Phillips and Masterpiece appealed to the U.S. Supreme Court.
THE SUPREME COURT’S DECISION PUNTS THE FREE SPEECH MERITS TO FOCUS ON HOSTILITY TOWARD RELIGION BY THE CCRC
Court observers might have forecast the eventual decision by carefully listening to Justice Kennedy during oral argument, in particular his questioning of Colorado Solicitor General Frederick Yarger about a comment during the administrative proceedings by one of the commissioners:
JUSTICE KENNEDY: ...
12 Commissioner Hess says freedom of religion used
13 to justify discrimination is
a despicable piece
14 of rhetoric.
15 Did the Commission ever disavow or
16 disapprove of that statement?
17 MR. YARGER: There were no further
18 proceedings in which the Commission disavowed
19 or disapproved of that statement.
20 JUSTICE KENNEDY: Do you disavow or
21 disapprove of that statement?
22 MR. YARGER: I would not have
23 counseled my client to make that statement.
24 JUSTICE KENNEDY: Do you now disavow
25 or disapprove of that statement?
1 MR. YARGER: I – I do, yes, Your
What Justice Kennedy referenced was a comment by one of the commissioners in the public hearing which Kennedy quotes in his majority opinion:
I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be – I mean, we – we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.15
Fairly enough, Justice Kennedy takes the commissioner’s comments as disparaging of Phillips’ religion in two ways, “by describing it as despicable, and also by characterizing it as merely rhetorical – something insubstantial and even insincere.”16 Justice Kennedy goes on to note that none of the other commissioners objected to the statements, that these comments were made by an “adjudicatory body” and that Phillips’ argument this was evidence of discriminatory treatment was not directly considered by CCOA.17
Justice Kennedy noted that in three other cases, the commission upheld refusals by bakers to make cakes with derogatory words and images, language and images the baker deemed hateful and a message the baker deemed discriminatory, but the refusals were founded in secular objections.18
Justice Kennedy concluded, “A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness.”19
“The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decision maker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.”20
Justice Kennedy concluded that the decision of CCOA was reversed without instructions on remand.21
In a separate concurring opinion, Justice Kagan joined by Justice Breyer agreed that the comments of the commissioners showed hostility toward Phillips’ religious beliefs, but also analyzed the three secular baker examples used by Justice Kennedy to show why they did not violate the law by refusing to make cakes with disparaging anti-gay comments.22
Justice Gorsuch joined by Justice Alito also concurred but disagreed with separate opinions of Justices Kagan and Ginsburg that the commission acted neutrally when it treated Phillips differently from the secular bakers. For Justice Gorsuch the refusal to make cakes that denigrated same sex marriages was a rejection of the religious beliefs of the customer who requested the cakes.23
Justice Thomas joined by Justice Gorsuch concurred and analyzed public accommodation laws and how they can impact free speech claims; and when there is a conflict, public accommodation must give way to free speech.24 Thomas also challenged a CCOA determination that making cakes was “not sufficiently expressive” to be protected from state compulsion.25
Justice Ginsburg joined by Justice Sotomayor dissented and also analyzed the three secular bakers, some of whom agreed to make cakes in the shape of a Bible, but refused to place anti-gay rhetoric on those cakes.26 The refusal was a decision by those bakers not to discriminate or disparage gays or same-sex couples and was distinguished because they would not sell those cakes to anybody, but Phillips would sell his cakes to anybody but same-sex couples. It could not be said the secular bakers refused the anti-gay cakes based on the religion of the person who ordered the cake. While Justice Ginsburg disparaged the comments made by the commissioner, they were only part of a layered proceeding with no clear evidence that the bias affected the result and in the course of events the result was subsequently reviewed and affirmed by CCOA.
SUGGESTION OF SEGREGATION
Because the Supreme Court passed over the merits of the case while Justice Kennedy focused on the discriminatory behavior of the CCRC, the court never reached the discriminatory proposal offered by Masterpiece Cakeshop. Masterpiece Cakeshop’s brief in chief argued that the commission could facilitate narrow tailoring by segregating public accommodations that cater to same-sex weddings:
… Respondents also have expressed an interest in minimizing the instances in which an expressive professional like Phillips declines a same-sex couple’s wedding-related request. But the market already provides existing means to address this, such as private websites apprising consumers of professionals in a geographical area who will celebrate same-sex weddings. See GayWeddings, http://gayweddings.com/ (last visited Aug. 29, 2017); cf. Brown [v. Entertainment Merchants Association], 564 U.S.  at 803  (discussing the video-game industry’s “rating system”). If the Commission thinks that more must be done, it could make similar resources available to the public. That would provide a ready alternative that protects the interests of all involved. Thus, the Commission’s efforts to coerce and punish Phillips are neither necessary nor narrowly tailored.27
There is a great deal of difference between reviews that rate video games and an action by the commission to develop lists of same-sex friendly businesses so businesses like Masterpiece Cakeshop need not be bothered. Proposing that the commission maintain such a list is to institutionalize at a government level the very discrimination Colorado sought to prevent in its anti-discrimination enactment.
This suggestion that a list of gay-friendly businesses be maintained hearkens back to the days of The Negro Motorist Green Book (often shortened to The Green Book) used by African Americans to find restaurants, hotels and other accommodations during travels through various areas of this country, including areas which imposed state established segregation.28 This includes segregated Oklahoma29 as photographs from the 1940 book illustrate.30
The Green Book was a private business. The first edition was published in 1936 by Victor H. Green, an African American postal carrier in Harlem, and covered only metropolitan New York. Green collected information from his own experience and those of fellow postal service union members. The publication was so popular, Green expanded his collection of information nationwide by again relying on fellow African American members of his postal service union and from travelers who used his books. He published a national edition beginning in 1937 and continued annual publication until 1967, lapsing after passage of civil rights acts of public accommodation.
The suggestion that such an instrument of segregation be maintained by a governmental agency is doubly problematic. Colorado’s interest in minimizing conflicts such those that as occurred in this case was for businesses to comply with the law and not initiate an official state-sponsored adaption to segregation.
If Masterpiece Cakeshop supported such public lists, an even more efficient method of notice would be for a business to voluntarily post a sign in its window, setting out what goods or services are off limits when same-sex weddings or other gender-related celebrations are concerned, so it would be clear to persons of certain sexual orientations or gender identification that “their kind is not welcome here,” at least for particular goods or services. For sure there may be fewer refusals since they would be refused in advance. Perhaps the public could use such signage to make decisions to patronize that business, but such signs of exclusion drag us back to the Jim Crow era of segregation or even earlier.
In their infancy during the mid-20th century civil rights era, public accommodation laws easily passed over similar claims that religious beliefs justified racial segregation. An example was the U.S. Supreme Court case Newman v. Piggie Park Enters., Inc.31 In Piggie Park, the defendant’s refusal to provide public accommodation for minority customers was grounded in numerous defenses including “defendants’ contention that the Act was invalid because it ‘contravenes the will of God’ and constitutes an interference with the ‘free exercise of the Defendant’s religion.’” The Supreme Court called these defenses “patently frivolous” and “not even a borderline case.”32
Justice Kennedy cites Newman in his majority opinion, “Nevertheless, while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”33
Justice Kennedy apparently anticipated the terrible consequences of such a solution and to some extent telegraphed his view in his opinion:
And any decision in favor of the baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons.34
Justice Kennedy does not give any clear indication of how to resolve questions beyond the line he draws in his illustration.
The growing societal acceptance of same-sex relationships and gender identities means issues of discrimination based on these categories will continue to return to the U.S. Supreme Court. The question still remains whether religion and religious belief can or will be allowed as a basis for discrimination in these categories.
Shortly after the Masterpiece Cakeshop decision, the Supreme Court granted certiorari in Arlene’s Flowers, Inc., v. Washington, vacated the judgment of the Washington Supreme Court and remanded in light of Masterpiece Cakeshop.35 The case involved a refusal of a flower shop to sell flowers to a longtime customer celebrating his same-sex marriage. On remand, the Supreme Court of Washington reaffirmed its decision36 and Arlene’s Flowers again sought certiorari on Sept. 11, 2019.37 At the time of this writing, the case has been circulated to the court for conference four times without any action with the last date of circulation on Feb. 14, 2020.38
Other lesbian, gay, bisexual or transgendered (LGBT) customers have sought to patronize Masterpiece Cakeshop. In March of 2019, Colorado again brought an action against Phillips and Masterpiece Cakeshop on behalf of a gender-transitioned customer who sought a cake celebrating her transition. Masterpiece Cakeshop then filed suit in federal court seeking a permanent injunction to prevent the state from enforcing its anti-discrimination LGBT laws against it. A federal judge would not dismiss the case,39 but both Phillips and the state agreed to mutual dismissals. The complainant said she would revive
the complaint individually.40
Only the U.S. Supreme Court can resolve issues of a claimed constitutional right to discriminate against same-sex and gender identities in public accommodations based on arguments of religious free exercise and free speech.
ABOUT THE AUTHOR
Micheal Salem is a solo practitioner in Norman. His practice areas are federal constitutional law and civil rights. He received his J.D. from the OU College of Law in 1975. He is the recipient of the Oklahoma Courageous Advocacy, Golden Quill, Fern Holland Courageous Lawyer and Joe Stamper Distinguished Service awards from the OBA.
- 584 U.S. _, 138 S. Ct. 1719, 201 L. Ed. 2d 35 (June 4, 2018); the SCOTUS docket can be seen at www.supremecourt.gov/docket/docketfiles/html/public/16111 (last visited March 31, 2020). Petitions and briefs were not available on the Supreme Court docket page in 2016. However, court filings, briefs and other resources can be found on SCOTUSblog, www.scotusblog.com/casefiles/cases/masterpiececakeshopltdvcoloradocivilrightscommn (last visited March 31, 2020).
- Certiorari was denied by the Colorado Supreme Court. Case references herein will be to the decision of the Colorado Court of Appeals (CCOA). See Mullins v. Masterpiece Cakeshop, Inc., 2015 COA 115, 370 P.3d 272 (Aug. 13, 2015) cert. den. Masterpiece Cakeshop Inc. v. Colo. Civ. Rights Comm’n, 2016 Colo. LEXIS 429, 2016 WL 1645027. The decision of CCOA in slip opinion can also be found at www.scotusblog.com/wpcontent/uploads/2016/08/16111opbelcoloapp.pdf (last visited March 31, 2020). The decisions of the administrative law judge and the Colorado Civil Rights Commission are not reported.
- In July 2012, Colorado did not recognize same-sex weddings. At the time of the scene at the Masterpiece Cakeshop, the U.S. Supreme Court had not yet considered Obergefell v. Hodges, 576 U.S. _, 135 S.Ct. 2584, 192 L. Ed. 2d 609 (June 6, 2015). In fact, certiorari was not granted in Obergefell until Jan. 16, 2015. Obergefell was argued on April 28, 2015, and decided on June 26, 2015. Even so, Colorado had provided limited recognition of same-sex unions in the form of designated beneficiary agreements since July 1, 2009. Colorado approved civil unions after May 1, 2013. Same-sex marriage was recognized on Oct. 7, 2014 when the Colorado attorney general instructed all 64 county clerks to begin issuing same-sex marriage licenses. Masterpiece Cakeshop, 370 P.3d at 272, ¶5 and fn. 1. This is the day after the U.S. Supreme Court denied certiorari in the same-sex case from the 10th Circuit, Smith v. Bishop, 574 U.S. 875, 135 S. Ct. 271 (2014).
- Respondents’ brief in opposition, p. 2-3 (Resp. BIO), see endnote 1.
- Masterpiece Cakeshop, 370 P.3d at 276. In his certiorari petition, Phillips contended he is “a Christian who strives to honor God in all aspects of his life, including his art.” Cert. Pet., p. 4. “From Masterpiece’s inception, Phillips has integrated his faith into his work.” He observes Sunday closings and describes other personal interactions with his employees founded in his “religious beliefs.” Id.
- It is uncertain from affidavits filed in the case that an offer of other baked goods was shop policy at the time of the incident or later arose as a litigation strategy. The joint appendix in the U. S. Supreme Court contains four affidavits, including an affidavit from Stephanie Schmalz. (J/A, p. 113-16). She described herself as in a committed relationship with another woman, Jeanine Schmaltz. They went to Masterpiece Cakeshop in 2012 to obtain cupcakes for their family commitment ceremony. Once it became clear this was for a same sex-ceremony, they were told by an employee that “… the Cakeshop owners believed in the Bible and that samesex marriage was not legal in the state of Colorado.” Stephanie later had doubts about the authority of the employee, telephoned, and talked to the same person she encountered in the shop who affirmed her authority to make a decision because she was one of the shop owners. Stephanie placed a negative review on Yelp which was answered by “Jack P.” who stated such a wedding was not legal in Colorado. (J/A, p. 115). Stephanie later called the shop, spoke to Phillips, said she wanted a cake for a pretend wedding between two dogs. The cake was to be in the shape of a bone. Phillips agreed to make such a cake and gave her a price. (J/A, p. 115). A second affidavit from Samantha Saggio also described a refusal by Masterpiece Cakeshop to provide a cake for a same-sex wedding. (J/A, p. 117-18). Two additional affidavits described similar results with an additional explanation from Phillips that he was “not willing to make a cake for the commitment ceremony for a samesex couple just as he would not be willing to make a pedophile cake.” (J/A, p. 120, 122). A statement in the record of “undisputed facts” from the brief in opposition to complainants’ summary judgment motion references an affidavit by Phillips which states:
27. Jack told the two men, “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.” (Resp’t Aff. ¶79). J/A, p. 152.
At oral argument, counsel for Phillips (Kristen Waggoner) responded to a question from Justice Ginsburg and, in a colloquy with Justice Kennedy and Chief Justice Roberts, stated that a wedding cake purchased off the shelf for a same-sex wedding celebration would not be objectionable because it was not “compelled speech” by Phillips. (Oral Arg. Tr. 4-10). Chief Justice Roberts asked if there was an objection to a pre-made cake being associated with a same-sex wedding and Waggoner said no, the speech was completed and therefore not compelled. There were no follow-up questions such as would there be an objection if Phillips was asked to write (in icing) the date of the wedding or the names of the parties.
- Cert. Pet., p. 6.
- Resp. BIO, p. 3 citing Pet. App. 75a.
- Cert. Pet., p. 6.
- Colo. Rev. Stat. §§24-34-301 to 24-34-804 (2014).
- Colo. Rev. Stat., §§2434601(2)(a), (2014). The CCOA noted that the “CADA also bars discrimination in places of public accommodation on the basis of disability, race, creed, color, sex, marital status, national origin, and ancestry.” Masterpiece Cakeshop, 370 P.3d at 279.
- Masterpiece Cakeshop, 370 P.3d at 277.
- See endnote 2.
- Oral Argument Transcript-Supreme Court, p. 51-2, www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16111_f29g.pdf (last visited, March 31, 2020).
- Tr. 11–12. Masterpiece, 138 S.Ct. at 1729.
- Id. It can be said the commissioner’s comments were necessarily disparaging of all religious justifications to discriminate, but by implication that would include Phillips’ religion.
- Masterpiece, 138 S.Ct. at 1729-30.
- Masterpiece, 138 S.Ct. at 1728-29, 30-31.
- Masterpiece, 138 S.Ct. at 1732.
- Masterpiece, 138 S.Ct. at 1732.
- Masterpiece, 138 S.Ct. at 1732-34 (Kagan, concurring).
- Masterpiece, 138 S.Ct. at 1734-40 (Gorsuch, concurring).
- Thomas cited Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 572 (1995) and Boy Scouts of America v. Dale, 530 U.S. 640, 657–659 (2000).
- Masterpiece, 138 S.Ct. at 1740-48 (Thomas, concurring).
- Masterpiece, 138 S.Ct. at 1748-52 (Ginsberg, dissent).
- Pet. Br. Merits, pp. 60-61.
- The Negro Motorists Green Book was the last and perhaps the most popular of several publications used by African Americans to find lodging, restaurants and other accommodations when traveling in the United States. Digital images of 23 editions of the publication are available at the New York Public Library Digital Collections, digitalcollections.nypl.org/collections/theGreenBook (last visited March 31, 2020). See “How the Green Book Helped AfricanAmerican Tourists Navigate a Segregated Nation,” Smithsonian Magazine (April 2016), www.smithsonianmag.com/smithsonianinstitution/historyGreenBookafricanamericantravelers180958506 (last visited March 31, 2020). As noted in the digital copies at the New York Public Library, The Green Book contained information not just for travel in the deep South, but numerous other states in the country.
- In the first chapter of his book, Blacks in White Colleges, George Lynn Cross narrates a chilling description of the historical development of segregation in Oklahoma.
- These images are from the digital collection of the New York Public Library, digitalcollections.nypl.org/items/dc858e5083d30132226658d385a7b928 (last visited March 31, 2020).
- See Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402, n. 5 (1968).
- Masterpiece Cakeshop, 138 S.Ct. at 1727.
- Masterpiece Cakeshop, 138 S. Ct. at 172829.
- 138 S.Ct. 2671 (June 25, 2018). The initial decision from the Washington Supreme Court is State v. Arlene’s Flowers, Inc., 187 Wn.2d 804, 389 P.3d 543, 2017 Wash. LEXIS 216, 2017 WL 629181 (Feb. 16, 2017).
- State v. Arlene’s Flowers, Inc., 193 Wn. 2d 469, 441 P.3d 1203, 2019 Wash. LEXIS 333, 2019 WL 2382063 (June 6, 2019).
- See www.supremecourt.gov/docket/docketfiles/html/public/19333.html (last visited 03/31/2020); the petition for certiorari, www.supremecourt.gov/DocketPDF/19/19333/115374/20190911110711424_USSC%20Petition%20for%20Writ%20of%20Certiorari.pdf (last visited March 31, 2020).
- It is difficult to read tea leaves under these circumstances. The failure to relist could mean a decision to deny certiorari has been made and a dissent from denial of cert is being composed, or some other reason for delay in relisting.
- See Masterpiece Cakeshop, et al. v. Elenis, et al., No. 18-cv-02074-WYD-STV, USDC Co. (Jan. 4, 2019). Despite the doctrine of abstention, Judge Wiley Daniel referenced the likelihood of an injunction to enjoin the state court proceedings to avoid “piecemeal litigation,” but made it clear this was not a statement regarding the merits. Id., p. 30, www.adfmedia.org/files/MasterpieceCakeshopMTDdenial.pdf (last visited March 31, 2020).
- See www.cpr.org/2019/06/06/masterpiecebakerjackphillipsisupagainstyetanotherlegalcomplaint (last visited March 31, 2020).
Originally published in the Oklahoma Bar Journal -- OBJ 91 No. 5 (May 2020)