First Amendment: Masterpiece Cakeshop v. Colorado Civil Rights Commission

By Steven D. Schwinn

Published November 2017

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Can a State Apply Its Anti-discrimination Law to a Wedding Cake Artist Who Refuses to Make a Wedding Cake for a Same-Sex Couple Because of His Religious Objections to Same-Sex Marriage?



Charlie Craig and David Mullins asked Jack C. Phillips, owner of Masterpiece Cakeshop outside of Denver, Colorado, and self-described “cake artist,” to design and create a cake for their wedding celebration. Phillips declined, saying that he objected to same-sex weddings, but that he would provide any other baked goods for the couple. Craig and Mullins brought a complaint under Colorado’s anti-discrimination law and won. Phillips argued that the law violated his rights to free speech and free exercise of religion under the First Amendment.


Colorado law bans discrimination by sexual orientation in commercial exchanges. At the same time, the First Amendment Free Speech Clause forbids the government from compelling a person to speak, and the Free Exercise Clause forbids the government from targeting a person’s exercise of religion. This case tests whether and how the anti-discrimination law holds up against either of these constitutional rights.


Does Colorado’s anti-discrimination law, which forbids businesses engaged in sales to the public from denying service because of a customer’s sexual orientation, violate the free-speech and free-exercise-of-religion rights of a person who designs and makes custom wedding cakes, but who refuses to make a cake for the wedding of a same-sex couple?


Masterpiece Cakeshop, Inc., is a bakery in Lakewood, Colorado, owned by Jack C. Phillips and his wife. Phillips designs and creates custom wedding cakes, which he describes as “an art form.” Prior to this case, custom wedding cakes accounted for about 40 percent of Phillips’s business.

Phillips describes himself as “a devout Christian who strives to honor God in all aspects of his life, including how he treats people and runs his business.” For example, he closes Masterpiece on Sundays so that he and his employees can attend religious services. And while he says that he “gladly serves people from all walks of life, including individuals of all races, faiths, and sexual orientations,” he does not design custom cakes that “express ideas at odds with his religious beliefs.” Thus, he does not design cakes that celebrate Halloween; that convey “anti-family” themes (like divorce); that express hateful, vulgar, or profane messages (“such as a cake disparaging gays and lesbians”); or that “promote atheism, racism, or indecency.” As part of his faith, he “believes that marriage is a sacred union between one man and one woman, and that it represents the relationship of Jesus Christ and His Church.”

In July 2012, Charlie Craig and David Mullins, two men, visited Masterpiece Cakeshop and asked Phillips to design and create a cake for their wedding. Craig and Phillips planned to marry in Massachusetts, which recognized same-sex marriages, and to celebrate later with friends in Colorado, which at the time did not. (That changed, of course, when the Supreme Court held in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), that bans on same-sex marriages violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment.) Phillips declined, telling Craig and Mullins that he did not create wedding cakes for same-sex weddings, but that he would be happy to make and sell them any other baked goods. Craig and Mullins promptly left the store. The following day, Craig’s mother called Phillips, and Phillips explained that he did not make wedding cakes for same-sex weddings because of his religious beliefs and because Colorado did not recognize same-sex marriages.

Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Commission, alleging discrimination based on sexual orientation in a place of public accommodation. An administrative law judge ruled in favor of Craig and Mullins, and the Commission affirmed. The Commission’s final cease-and-desist order required that Masterpiece take remedial measures, including comprehensive staff training and alteration of the company’s policies to comply with Colorado’s anti-discrimination law, and file quarterly compliance reports for two years.

Phillips appealed to the Colorado Court of Appeals, arguing, among other things, that the Commission’s ruling violated his rights to free speech and to free exercise of religion. The Court of Appeals ruled against Phillips. Phillips sought review in the Colorado Supreme Court, but that court declined to take up the case.

Meanwhile, rather than comply with the Commission’s order, Phillips stopped designing and creating all wedding cakes. This appeal followed.



The case involves two legal issues. Let’s take them one at a time.

Free Speech

Phillips claims that the Commission’s order violates his free speech rights, because it forces him to communicate a message that he disagrees with. Phillips says that as an artist he designs his wedding cakes “for the purpose of celebrating his clients’ marriages,” and that they therefore “necessarily express ideas about marriage and the couple.” But he claims that the Commission’s order compels him to design and create a cake for a wedding—a same-sex wedding—that is at odds with his own faith. Phillips contends that this kind of forced speech violates the general rule that the government cannot compel a person to convey a particular message, much less one that the person opposes. (The government weighs in to support Phillips and makes substantially similar arguments.)

Craig and Mullins argue that the Commission’s order does not violate free speech. They claim that Colorado’s prohibition on discrimination in the sale of goods and services to the public is a commercial regulation that affects free speech only incidentally, and that the Court has repeatedly upheld this kind of anti-discrimination law against First Amendment defenses like Phillips’s. Moreover, they argue, contrary to Phillips, that Colorado’s law does not force Phillips to speak, but instead simply regulates a commercial exchange in a content-neutral way. Craig and Mullins assert that even if Colorado’s law triggers heightened scrutiny under the First Amendment, it passes muster, because “it is precisely tailored to serve…a compelling government interest in ending discrimination by commercial establishments open to the public.” Finally, Craig and Mullins contend that Phillips’s and the government’s attempts to limit their claims to “expressive products” are not supported by the record in this case, not supported by Court precedent, and would lead to a slippery slope allowing discrimination by numerous other businesses against many other classes of people. (The Commission filed a brief with substantially similar arguments.)

Free Exercise

Phillips argues that the Commission’s order violates his right to free exercise of religion, because it applies only in a one-sided way “under which people of faith who share Phillips’s beliefs always lose.” To illustrate, he says that “[c]ake artists who support same-sex marriage may refuse requests to oppose it,” but that he “may not decline requests to support it.” Phillips says that this one-sided application “defies the requirements of neutrality and general applicability” under free-exercise doctrine. Moreover, he contends that because this case involves a confluence of free-speech and free-exercise rights, the Court should apply strict scrutiny to the Commission’s order. He says that the Commission’s order fails that rigid test, because the Commission’s order is not narrowly tailored to meet a sufficiently compelling interest. (The government does not offer an argument on Phillips’s free-exercise claim.)

Craig and Mullins argue in response that Colorado’s law is a neutral, generally applicable law that governs all retail businesses and does not target religious exercise. Under settled free-exercise doctrine, Craig and Mullins say that the Court should apply mere rational basis review and that the law does not violate the Free Exercise Clause. Moreover, they contend that Phillips’s hybrid claim “lacks any support in precedent or reason.” They claim that Phillips cannot avoid rational basis review by coupling his free-exercise claim with “an otherwise unsuccessful free-speech claim.” (The Commission adds that even if strict scrutiny applied to Phillips’s free-exercise defense, it would be satisfied: “As this Court has acknowledged, public accommodations laws both serve compelling interests and are precisely tailored to address the harms of discrimination by commercial entities.”)


This is one of the most closely watched cases on the Court’s docket this term. That’s because it deals with a critical and controversial follow-up issue to the Court’s ruling in Obergefell: If same-sex couples have a right to marry (as they do), then do they also have a right to anti-discrimination protection under state and local laws, as against a wedding-cake artist’s rights to free speech and free association?

This is certainly not the first time we’ve seen this kind of tension between anti-discrimination norms and First Amendment claims. It wasn’t that long ago, relatively speaking, that businesses, politicians, and even courts cited religious liberty as a justification for racial discrimination in violation of anti-discrimination laws. But the Supreme Court rejected those claims and affirmed that a religious justification could not overcome “a firm national policy to prohibit racial segregation and discrimination in…education.” Bob Jones Univ. v. United States, 461 U.S. 574 (1983). See also Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968). This case tests whether that principle also applies to a law prohibiting discrimination by sexual orientation. It’s not obvious why that difference should matter under the Free Exercise Clause, and any opinion from the Court in favor of Phillips would have to explain.

This case also tests whether that principle applies to a defense based on free speech. This might matter. For example, the Court held in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557 (1995), that a state court violated free speech when it applied Massachusetts’s anti-discrimination law to require private citizens who organized a St. Patrick’s Day/Evacuation Day parade to include a group formed to express its members’ pride in their Irish heritage as openly gay, lesbian, and bisexual individuals. The parties dispute whether and how Hurley applies to this case. But despite their disagreement, the case nevertheless illustrates one way that Phillips might get more traction out of his free-speech claim than his free-exercise claim. (The fact that the government supported Phillips in his free-speech claim, but did not offer a free-exercise argument, also suggests that Phillips has a stronger free-speech claim than a free-exercise claim.)

But Phillips’s free-speech claim depends on a key threshold issue, whether Phillips’s cakes “talk.” It is not clear that Phillips’s wedding cakes communicate any message at all, even though he has gone to lengths to show that they are “art” and to show his belief that any wedding cake necessarily celebrates the wedding. But if the Court concludes that Phillips’s cakes don’t “talk,” then his free-speech claim will necessarily fail.

If the Court rules for Phillips, it will have to do some very careful line-drawing. That’s because Phillips’s defenses do not have obvious limits. For example, if those defenses are successful against laws banning discrimination by sexual orientation, should they also be successful against laws banning discrimination by race? By sex? Even by religion? And if they’re successful for a cake artist, should they also be successful for a high-end food caterer? A photographer? A musician? It’s hard to see how the Court might cabin Phillips’s arguments.

These are not just theoretical problems. Some 38 states and more than 100 local governments have laws that ban discrimination by sexual orientation in public accommodations. The Court’s ruling will affect all of these, one way or the other. Moreover, advocates on both sides seem to see this case, at least in part, as a kind of relitigation of Obergefell itself—and a statement as to how seriously the Court will treat that case.

Finally, it should come as no surprise that all eyes are on Justice Anthony Kennedy, the author of the Court’s opinion in Obergefell. All signs suggest that he is (again) the swing vote, and the parties have carefully tailored their arguments to him.