In July, 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop, a small bakery in Lakewood, Colorado, to order a cake for their upcoming wedding reception. The owner, Jack Phillips, told them that he would happily provide baked goods for them for other occasions, but he would not create a cake for this event, citing his general policy, based on his religious convictions, against participating in same-sex marriages. In that very brief conversation—it lasted about twenty seconds, both sides agree—there surfaced a legal conflict between small-business proprietors with strongly held religious beliefs and the rights of gay Americans.
On Monday morning, the Supreme Court put off, for a second time, the decision whether to hear Masterpiece Cakeshop v. Colorado Civil Rights Commission, but the core of the issue is unlikely to remain unresolved for long. The case is just one of a number of disputes in which small-business owners have refused to provide their usual services—cakes, flowers, photography, or marriage venues—to same-sex couples for their weddings, notwithstanding state or local laws forbidding discrimination on the basis of sexual orientation. The venders, usually sole proprietors, have argued that same-sex marriage offends their religious convictions, and that the anti-discrimination laws therefore violate their First Amendment rights, either by compelling them to engage in speech they don’t agree with—forcing them, in their attorneys’ words, to “honor,” “celebrate,” or “participate in” a same-sex marriage—or by interfering with their “free exercise of religion.”
The couples and the state civil-rights bodies bringing these cases (which, in most cases, have sought nominal damages or orders not to discriminate in the future, or both) protest that the anti-discrimination laws don’t relate to expression at all but only to conduct, and therefore don’t violate the First Amendment. If the businesses choose to provide services to the public, they must do so in accordance with state and local anti-discrimination laws. In doing so, no reasonable person would infer that they are expressing any views on same-sex marriage.
The anti-discrimination laws “are not forcing you to say anything,” James Esseks, an attorney for the couple in the Masterpiece Cakeshop case and the director of the A.C.L.U.’s L.G.B.T.-rights project, said in an interview. “You can say to whomever, ‘I think gay people shouldn’t be able to get married. It’s a sin.’ You just can’t turn people away because of who they are.”
The particulars of these cases, however, suggest that they are more complicated than that, William Eskridge, Jr., a constitutional-law professor at Yale Law School, said in an interview. Eskridge acknowledged being torn, inasmuch as he describes himself as both “openly gay and openly religious.”
“It’s a very hard question,” he said. “Doctrinally, it could go either way.” Eskridge has been active in gay-rights litigation for twenty-five years—he filed a marriage-equality case for a client in Washington, D.C., back in 1990—but he also believes that the legitimate rights of religious minorities have been neglected by judges.
“Fundamentalist Protestants, Catholics, Orthodox Jews, Muslims, Mormons—it’s a big chunk of America,” he told me. “Decent people. They feel they are under siege by government. Many have no problem with gay customers. They just don’t want to participate in the choreography of gay weddings.”
Phillips, the owner of Masterpiece Cakeshop, is represented by the Alliance Defending Freedom, a conservative Christian advocacy group founded in 1994. According to a brief filed by Alliance lawyers, “Phillips believes that God ordained marriage as the sacred union between one man and one woman, a union that exemplifies the relationship of Christ and His Church.” (Phillips’s lead attorney, Jeremy Tedesco, did not respond to an e-mail seeking an interview.) The Alliance is also representing Barronelle Stutzman and her shop, Arlene’s Flowers, of Richland, Washington, which lost a similar case before that state’s Supreme Court last month, and is expected to seek U.S. Supreme Court review.
After the incident at Masterpiece Cakeshop became public, another bakery provided Craig and Mullins with a cake, adorned with a rainbow, at no charge. But the affront gnawed at the couple, and they filed a discrimination charge with Colorado’s Civil Rights Commission that September. The commission brought a case against Phillips and his shop in May, 2013.
The situation differs in some important ways from, say, those in which African-Americans were refused service at Woolworth’s lunch counters in the nineteen-fifties. One factor that is not different, however, is the way that religion has often been cited as a basis for discrimination. “Most Protestant churches in the South believed slavery and, later, [American] apartheid and anti-miscegenation laws were ordained by God,” Eskridge told me. “Presbyterians, Methodists, Southern Baptists—respectable religions. Maybe several million people still believe that.”
Yet, from the standpoint of individual liberty, a mammoth corporation, such as Woolworth’s, is different from a mom-and-pop business. The regulatory machinery has been hesitant to tell individuals how to behave on their own premises, no matter how repugnant their behavior may seem. To this day, as Eskridge observes, the federal employment-discrimination laws do not apply to businesses with fewer than fifteen employees, and housing-discrimination laws do not affect owner-occupied buildings with four units or fewer.
Also, a Woolworth’s luncheonette could not plausibly have claimed that serving a plate of hash browns was a form of expression protected by the First Amendment. In the Masterpiece Cakeshop case, and disputes like it, the sole proprietors often argue that their work contains a strong expressive element, subject to First Amendment protections. In Phillips’s briefs, for instance, his lawyers never describe him as a “baker” but always as a “cake artist,” arguing that a wedding cake “forms the centerpiece of a ritual in which the couple celebrates their marriage,” and that it “communicates this special celebratory message. Slicing a pizza or pot roast would not have the same effect.”
Judges have rejected these arguments so far, in part because Phillips’s refusal to serve Craig and Mullins was so categorical, and their conversation so brief. They never reached potentially relevant details such as what, if anything, would be inscribed on the cake.
“For all Phillips knew at the time,” an administrative-law judge ruled, in 2013—in a decision later adopted by the Colorado Civil Rights Commission and upheld by the state appeals court—Craig and Mullins “may have wanted a nondescript cake suitable for consumption at any wedding.” The commission has conceded that Phillips could have lawfully declined to write messages that he disagreed with on the cake, and it has previously allowed bakers to refuse to adorn cakes with white-supremacist and anti-Muslim messages.
Phillips’s attorneys argue that the couple was asking him to “design and create” a unique cake, and that, even if they weren’t, any cake would convey the “unconscionable” message “that a wedding has occurred, a marriage has begun, and the couple should be celebrated.”
The Supreme Court was first expected to decide whether to hear the Masterpiece Cakeshop case at a conference in early January. The case’s conference date was then postponed twice, while at least one Justice asked to see the complete record. Now the petition has been presented at two conferences without the Court taking action. Some Court watchers speculate that the Justices will probably deny review, but with a dissenting opinion that one Justice has not yet finished writing. Should the Court decline to hear Masterpiece Cakeshop, it might well choose to grant review in a later case, such as the Arlene’s Flowers case, after the Court has reacquired a full complement of nine Justices. The Court’s composition is likely moving to the right, with confirmation hearings for President Donald Trump’s nominee, Neil Gorsuch, set to begin on March 20th. Meanwhile, one state, Mississippi, has enacted a law that would immunize business owners like the ones involved in these cases from facing penalties under state or local anti-discrimination laws. A federal district judge blocked that law from taking effect, last June, finding it to be unconstitutional, and that case will be argued before a federal appeals court in Lubbock, Texas, next month.
Esseks, the A.C.L.U. attorney representing Craig and Mullins, maintains that the stakes are very high in these cases. “If businesses get to say, ‘We’re not going to serve you or you or you, because my religion tells me I shouldn’t,’ that undermines every non-discrimination law we have in the country. It’s not limited to gays or weddings or bakeries or florists. It allows any business to turn people away based on the business owner’s religious beliefs. This is not a small accommodation for religion. This is a serious body blow for civil rights across the country.”
