Facts of the Case

In 2012, the private respondents, Charlie Craig and David Mullins, went to a Colorado shop, Masterpiece Cakeshop, and requested a custom-made cake for their wedding. One design that was requested was a rainbow pattern. The owner of the shop, Jack Phillips, who was primarily responsible for making custom cakes, refused to do so because his religious beliefs prohibited him from creating a cake for same-sex couples. The private respondents filed discrimination charges with the Colorado Civil Rights Division, alleging that they had been discriminated against because of their sexual orientation. During arguments before the Court, Kristen Waggoner represented Masterpiece Cakeshop and Mr. Phillips, with amicus curiae support from General Noel Francisco from the United States. Arguing against were Frederick Yarger, for the State respondent, and David Cole, for Mr. Craig and Mr. Mullins.

Question Posed

Does the application of Colorado’s public accommodations law to compel a cake maker to design and make a cake that violates his sincerely held religious beliefs about same-sex marriage violate the Free Speech or Free Exercise Clauses of the First Amendment?

Arguments

Waggoner – for private petitioner

Waggoner starts by conceding that premade wares, such as cakes on display, must be sold to anyone regardless of who they are, because any speech that is on the cake is both completed and uncompelled. However, she argues, because this case deals with a custom-made cake, speech can be compelled. Waggoner proves it is speech by passing it under a test of ‘is it communicating something?’. She argues that, unlike sandwich artists, as presented by Justice Sotomayor, the cake is a temporary sculpture, causing it to be art, and therefore speech. Furthermore, the case does not involve discrimination, as it involves the ‘what’ (i.e. The message presented), and not the ‘who’ (i.e. The identity of the customer). In her rebuttal, she says, “A wedding cake expresses an inherent message that is that the union is a marriage and is to be celebrated, and that message violates Mr. Phillips’s religious convictions.” She poses other examples, protecting florists, cakemakers, and invitation makers so long as the customer requests custom products, but not hairstylists and makeup artists, arguing that they do not ‘speak.’ In response to a question from Justice Kagan, Waggoner says that a couple with a claim of a bar of service due to interracial marriage or disability would have a different claim than the one presented, but interreligious marriage would present a similar claim.

Francisco – amicus curiae, for petitioner

Francisco starts with an example, saying that an African American sculptor can refuse to make a cross for the KKK. He continues by agreeing with Waggoner’s argument on premade wares. In response to a question from Justice Kagan about the difference between a chef and a baker, he responds by saying that a chef, although the speech is not completed by the time a disagreeable couple walks in, cannot deny them service because he is only mechanically making the same product, instead of a custom one, equating it to a premade ware. Continuing Waggoner’s proof of speech, he says that a cake is a sculpture, save the medium. He suggests a test presented by the Mastrovincenzo (2004), of ‘predominantly art or predominantly utilitarian.’ Assuming the test, he says that a wedding cake is not bought for its taste, but its looks. Therefore, it is predominantly art. In his concluding statement, he says, “And the problem is when you force somebody not only to speak, but to contribute that speech to an expressive event to which they are deeply opposed, you force them to use their speech to send a message that they fundamentally disagree with. And that is at the core of what the First Amendment protects our citizenry against.”

Yarger – for State respondent

Yarger argues that Masterpiece Cakeshop is a retail store, and therefore, they cannot discriminate. Furthermore, citing the example of a photographer refusing to photograph a Jewish family, he says that anti-discrimination law cannot be trumped by one’s beliefs. He concedes that if the artist would not sell the product to anyone regardless of identity, then he is not compelled to sell it to a particular customer. On question about the remedy that was ordered, a comprehensive instruction to employees, Yarger says there is no harm, because it was merely education in Colorado law, which would not be an intrusion into the petitioner’s beliefs. During his argument, Justice Alito pointed out that, at the time of the act, Colorado did not recognize same-sex marriage, as Obergefell had not yet been decided. Therefore, Mr. Phillips may have had a good reason, based on the illegality of same-sex marriage, to refuse the cake.

Cole – for private respondents

Cole argues the issue presented by the petitioners, the ‘who’ vs. ‘what’ issue. He says that but for the sexual orientation of the respondents, Mr. Phillips would have sold them the cake. Furthermore, because there were no words or messages on the cake, it is more likely that this is a case of identity-based discrimination. As an example, he says that if one were to request the words ‘God bless the union of Dave and Craig,’ and refuses, but writes for a different customer ‘God bless the union of Ruth and Marty,’ then he has discriminated against Dave and Craig because only the identity of the customer has changed. Furthermore, he argues that Masterpiece has no participation in the wedding, and it cannot be assumed that the shop necessarily agrees or disagrees with the message on the cake. He argues lastly that, even if Mr. Phillips has no problem inherently with gay people, but just does not agree with the action of their marriage, there is no difference, according to Bob Jones (1983).

Case Analysis

One key concession made by all is that if the case is a refusal to serve due to the identity of the customer, then the case is illegal discrimination, but if it is due to the content of the message, then there is no discrimination. The most compelling piece of evidence presented was that, after refusing service to a custom-made ware, that he offered some of his premade wares. This demonstrates that Mr. Phillip’s objection is not necessarily to the sexual orientation of the couple, but to the message that, as Waggoner presented, marriage is to be celebrated. Both Waggoner and Francisco argue the point well that the cake, in the context of a wedding, is sculpture, or at very least art. As to the point of non-participation, using Francisco’s African American example, one would expect that even though he did not attend a Klan meeting, but still has reasonable grounds to not produce it. While in a less form, the same principle applies. Therefore, Masterpiece Cakeshop should win this case.

Sources:

https://www.oyez.org/cases/2017/16-111

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-111_f314.pdf