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U.S. Supreme Court

Chemerinsky: Is there a constitutional right for a business to not serve customers?

Erwin Chemerinsky

The U.S. Supreme Court’s December oral argument calendar has several potential blockbuster cases, but none is likely to be more important than Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, which will be argued Tuesday. The underlying issue is profoundly significant: does a business have a constitutional right to discriminate based on its owner’s beliefs?



All anti-discrimination statutes pose a tension between equality and liberty. Any law that prohibits discrimination—whether based on race, sex, religion, sexual orientation or any other grounds—denies the freedom to choose who to serve or to hire. Indeed, this was a key objection to the Civil Rights Act of 1964, which prohibits places of public accommodation from discriminating based on race and forbids employers from discriminating based on race, sex or religion; the law interferes with the freedom to choose one’s customers or employees. Congress and the courts both deemed ending discrimination to be more important than protecting the right to discriminate.

But that is exactly the issue in Masterpiece Cakeshop: Is a business’s freedom to choose its customers more important than the government interest in stopping sexual-orientation discrimination?

Charlie Craig and David Mullins got married in Massachusetts and wanted to celebrate their wedding where they lived in Colorado. They went to a local bakery, Masterpiece Cakeshop, a limited liability company in Colorado, and sought to purchase a wedding cake. The owner, Jack Phillips, refused to bake the cake, saying that gay marriage violated his religious beliefs.

The Colorado Civil Rights Commission found that Phillips violated Colorado’s public accommodations law, which prohibits business establishments from discriminating, including on the basis of sexual orientation. Phillips would bake a cake for opposite-sex couples, but not for same-sex couples, a form of discrimination that violated state law. The Colorado Court of Appeals affirmed the commission’s ruling against Masterpiece Cakeshop.

The question presented states: “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.”

Although the discrimination was based on Phillips’ religious beliefs and a claim of free exercise of religion is presented, the case is unlikely to be decided on that basis because of the Supreme Court’s decision in Employment Division v. Smith (1990). That case involved Native Americans in Oregon who argued that a state law prohibiting consumption of peyote infringed their free exercise of religion. They said that their religion required use of peyote in religious rituals.

The Supreme Court, in an opinion by Justice Antonin Scalia, ruled against the Native Americans and concluded that there was no violation of free exercise of religion because the Oregon law was neutral in that it was not motivated by a desire to interfere with religion, and because it applied to everyone in the state. The court held that the free exercise clause cannot be used to challenge such a neutral law of general applicability.

Likewise, Colorado’s law that prohibits business establishments from discriminating is a neutral law of general applicability. Colorado’s anti-discrimination law was not motivated by a desire to interfere with religion and it applies to all business establishments. Masterpiece Cakeshop thus cannot prevail on its religious freedom claim unless the Supreme Court overrules Employment Division v. Smith or significantly changes the law of the free exercise clause.

If the court overrules or limits Employment Division v. Smith, the implications will be great. Any person then could claim that his or her religion requires accommodation. The court long has held that the focus in religious freedom cases is whether a particular person has a sincerely held religious belief, not what the religion teaches. There would be no way to keep a business owner from saying that his or her religion requires not serving women or Jews or Muslims or any group.

The other issue in the case—and the one that is likely to be the central focus—is whether forcing Masterpiece Cakeshop to bake a cake for Craig and Mullins constitutes impermissible compelled speech in violation of Phillips’ free speech rights. The Supreme Court long has held that compelled speech violates the First Amendment. Phillips argues that baking a cake is inherently expressive activity. He describes himself as a “cake artist.” He says that to force him to bake a cake is to compel him to engage in speech.

The court has to face the question of whether baking a cake should be regarded as expressive activity and whether a company can make such a speech claim. But if so, then almost any kind of work can be seen as being a form of expression. If baking a cake is speech, then so is cooking food or, as in other cases that have arisen, taking pictures or making floral arrangements.

Under this rationale, any business could refuse to serve anyone by claiming that the anti-discrimination law constitutes impermissible compelled speech. For example, Title II of the 1964 Civil Rights Act prohibits restaurants, and other public accommodations, from discriminating based on race. A restaurant owner could claim that forcing cooking of food for African-Americans is impermissible compelled speech in violation of the First Amendment. All work can be described as a form of expression, and any business could argue that forcing it to provide services infringes the Constitution.

If this case arose in the context of a restaurant owner claiming that cooking food for an African-American was impermissible forced speech, there is no doubt that the court would reject that claim. The court surely would say that there is a compelling government interest in stopping race discrimination. But Masterpiece Cakeshop arises in the context of marriage equality for gays and lesbians. And four justices—John Roberts, Clarence Thomas, Samuel Alito and Neil Gorsuch—have written opinions expressing their opposition to such a right.

Thus, it would seem that the outcome of this case, like for so many, will depend on Anthony Kennedy. He has written every Supreme Court opinion advancing rights for gays and lesbians. But he also has been with the conservatives in cases involving claims of religious freedom, such as in Burwell v. Hobby Lobby, which involved whether a business owner’s religious beliefs justified failing to provide insurance coverage for contraceptives.

Ultimately, the issue for Justice Kennedy and all of the members of the court is whether there should be a constitutional right to engage in discrimination. If so, the implications for the future of anti-discrimination laws are dire and enormous.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).