Masterpiece Cakeshop Ruling Could Turn Back the Clock 50 Years
By Frank J. Bewkes and Billy Corriher
The U.S. Supreme Court will hear oral arguments in Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission on
December 5, and the ruling, expected in late spring or early summer 2018, could upend civil rights law. At issue is whether
the First Amendment’s free speech and free exercise clauses permit a business that is open to the public to refuse service to
groups of people, in violation of laws prohibiting discrimination.
In July 2012, Charlie Craig and David Mullins visited Masterpiece Cakeshop in Colorado to buy a wedding cake. Shop owner
Jack Phillips refused to sell them a cake when he realized it was for a same-sex couple. The Colorado Civil Rights
Commission and state courts agreed that this refusal violated the public accommodations section of the Colorado Anti-
Discrimination Act and that the ban on discrimination did not violate the Constitution.
The Supreme Court will decide whether the free speech or free exercise clauses permit a business to discriminate,
regardless of civil rights laws. The court could grant an unprecedented license to discriminate, which would lead to the
erosion of nondiscrimination protections and setting civil rights back a half-century.
Discrimination by businesses is not protected conduct
This is not the first time that businesses have argued that discrimination should be constitutionally protected; it is not even the
first time that the First Amendment has been put forward as a defense. In Hishon v. King and Spalding—a case involving sex
discrimination against a female lawyer—the court stated that “invidious private discrimination … has never been accorded
affirmative constitutional protections,” rejecting her firm’s claim that the nondiscrimination law violated the First Amendment
freedoms of association and expression. The court has also established that a business has no right to select their
customers “as it sees fit, free from governmental regulation.” In fact, the court has previously called claims that a
nondiscrimination statute interferes with the exercise of religion “patently frivolous.” As retired Supreme Court Justice Sandra
Day O’Connor said in 1984, “The Constitution does not guarantee a right to choose employees, customers, suppliers, or
those with whom one engages in simple commercial transactions, without restraint from the State.”
Even if nondiscrimination laws burden a constitutional right to some degree, the state has a compelling interest in combatting
discrimination that outweighs any infringement. As the court has noted, “Not all burdens on religion are unconstitutional. …
The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental
interest.” When Bob Jones University’s tax exempt status was revoked because it banned interracial dating by students, the
court found the government to have a “fundamental, overriding interest in eradicating racial discrimination” that “substantially
outweighs” any burden on the university’s religious beliefs. The court has also held that eliminating gender discrimination
and “assuring its citizens equal access to publicly available goods and services … serves compelling state interests of the
Lawyers for Masterpiece Cakeshop will argue that LGBTQ discrimination is somehow different from racial or gender
discrimination, but it is not. U.S. Supreme Court Justice Anthony Kennedy wrote in Romer v. Evans that specifically denying
“legal protection from the injuries caused by discrimination” for people based on their “homosexual, lesbian or bisexual
orientation, conduct, practices or relationships” amounts to discrimination and is not justified by “legitimate state interests.”
The 9th U.S. Circuit Court of Appeals has found a “compelling governmental interest” in the “preservation of the integrity of its
antidiscrimination policies,” including those addressing sexual orientation. A survey commissioned by CAP found that one-
quarter of LGBTQ respondents reported experiencing discrimination in 2016.
State courts around the country—including in Colorado, New Mexico, and New York—have rejected claims that religion can be
used to justify discrimination. Recently, the Washington Supreme Court unanimously rejected a florist’s argument that her
faith required an exception to a nondiscrimination law that protects LGBTQ customers. If the U.S. Supreme Court overturns
rulings that uphold nondiscrimination protections, the balance that courts have struck would be upset, and nondiscrimination
laws around the country would be undermined.
Bending the moral arc of the universe away from justice
The Supreme Court has, until recently, consistently rejected religious freedom exceptions to generally applicable laws,
including bans on racial discrimination, polygamy, and drug use. In a 1990 religious liberties case, U.S. Supreme Court
Justice Antonin Scalia quoted an 1878 case noting that granting a religious exemption to a law that does not specifically target
religion would, in essence, “make the professed doctrines of religious belief superior to the law of the land, and … permit
every citizen to become a law unto himself.”
Despite these rulings, anti-LGBTQ rights activists are encouraged, because the Supreme Court has recently expanded the
scope of religious liberty protections. In Burwell v. Hobby Lobby, the court recognized religious freedom claims from some for-
profit corporations and exempted them from the federal mandate that health insurance cover contraception. Prior to this case,
courts had never recognized corporations as having any right to religious freedom.
If arguments put forth by the anti-LGBTQ group Alliance Defending Freedom are accepted, the court’s ruling in Masterpiece
Cakeshop could signal a retreat from decades of civil rights progress, ushering in a world where discrimination is again
acceptable in hotels, restaurants, schools, colleges, law firms, and labor unions. Furthermore, the possible negative effects
extend beyond the LGBTQ community. Once the court recognizes a constitutional right to discriminate, businesses could turn
away people of color, single mothers, unmarried cohabitants, Muslims, Jews, interfaith couples, and many others. It is not
unreasonable to envision a dystopia where businesses such as Piggie Park, the barbecue restaurant chain that achieved
notoriety for refusing black customers, could now seek to relitigate their claims from the 1960s and now argue that operating
their business in this manner was expressive conduct that should be exempt from nondiscrimination laws.
The court’s swing vote, Justice Kennedy, has historically sided with those protecting the rights of LGBTQ people and has
written all of the court’s rulings in favor of LGBTQ rights. Accepting the arguments of Masterpiece Cakeshop v. Colorado Civil
Rights Commission means denying the “equal dignity in the eyes of the law” that Justice Kennedy promised the LGBTQ
community in Obergefell v. Hodges. Hopefully he again comes down on the side of freedom, dignity, and equality.
Frank J. Bewkes is a policy analyst for the LGBT Research and Communications Project at the Center for American Progress.
Billy Corriher is the deputy director of Legal Progress at the Center.