Legislative Update

Of wedding cakes and free speech

By Tom Venzor 

Last week, the U.S. Supreme Court heard oral arguments in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n. Masterpiece represents a watershed moment for free speech and religious liberty rights and the legal protections that some states have offered for sexual orientation and gender identity. The case illustrates the ideological clash between differing views on marriage and human sexuality. In addition to the background facts, there are a couple points worth consideration.

Background Facts. In 2012, Jack Phillips—owner of Masterpiece Cakeshop—was approached by two men who asked Jack to create a wedding cake for their same-sex wedding ceremony. Jack declined to create the cake as he could not create a message promoting same-sex marriage, but offered to sell the two men any other baked good in his store. In turn, the two men filed a sexual orientation discrimination complaint against Jack with the Colorado Civil Rights Commission, based on a law that prohibits discrimination based on sexual orientation in public accommodations (such as stores like Masterpiece Cakeshop).

The following year, an administrative court ruled against Jack. The administrative judge ruled that Jack’s creation of custom cakes was not protected speech under the 1st Amendment of the U.S. Constitution. The Colorado Civil Rights Commission ordered Jack to create cakes for same-sex wedding ceremonies or get out of the wedding cake business altogether.
Jack lost further appeals and the Colorado State Supreme Court refused to take his case. Jack’s legal representative, Alliance Defending Freedom, successfully petitioned the U.S. Supreme Court.

Focus on ‘Speech.’ The legal issue presented to the U.S. Supreme Court in Masterpiece is: “Whether applying Colorado’s public accommodation 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.” Notably, the oral arguments focused specifically on the Free Speech Clause issue, with little focus on the Free Exercise Clause issue.

Supreme Court Justices spent considerable time interrogating attorneys on both sides about their legal theories regarding speech and the implications of these theories on other scenarios. For example, Justices Sotomayor, Kagan, and Ginsburg questioned Kristin Waggoner, legal counsel for Jack, regarding the difference between Jack’s custom-designed wedding cakes and hair designers or make-up artists for wedding ceremonies.

Notably, one Supreme Court commentator thought that the Court’s interest in the implications of the case, rather than in the facts of the particular case itself, could be a sign that Waggoner was “on the verge of building a coalition with otherwise hostile judges, that perhaps those judges could be won over—provided their ruling doesn’t extend farther than they desire.”

Other commentators have not gone so far and recognize that Justice Anthony Kennedy remains the key swing vote. They recognize that while Justice Kennedy was key to creating the so-called right to same-sex marriage in Obergefell v. Hodges (2015), he is also known to champion free speech rights.

Writing on the Wall. David Cole, the National Legal Director of the Americans Civil Liberties Union (ACLU), represented the same-sex couple. Cole vehemently argued that if Jack wants to open his business to the public, then he also must abide by all laws, including non-discrimination laws, without exception. Cole argued that if Jack would create and design a wedding cake for a heterosexual couple, Jack would have to create the same cake for the homosexual couple. Specifically, if Jack would create a cake that said “God bless the union of Ruth and Marty,” then Jack would be compelled to design a cake that says “God bless the union of Dave and Craig” even though the latter example would violate Jack’s beliefs about marriage.

Cole’s argumentation demonstrates the extreme effect that such non-discrimination laws have against individuals who have sincerely held faith-based and morally-based beliefs regarding the nature of marriage and human sexuality.

Waiting Game. The U.S. Supreme Court begins their term in October and continues until late June or early July. With major or contentious cases, the Court generally does not issue its legal opinions until nearly the end of its term. While the Court could issue an opinion earlier, it seems likely that this case will not be resolved until the middle of 2018.

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