Professor Linda McClain weighs in on the Colorado wedding cake case in this POV for BU Today.
On December 5, 2017, the Supreme Court heard oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which baker (self-described cake artist) Jack Phillips, owner of Masterpiece Cakeshop, asked the court to decide “whether applying Colorado’s public accommodations law to compel artists to create expression that violates their sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.”
Phillips appealed the ruling by the Colorado Court of Appeals that he violated the public accommodations provision of the Colorado Antidiscrimination Act (CADA), which prohibits discrimination on the basis of sexual orientation, when, citing his religious beliefs about marriage, he declined to bake a cake to celebrate the wedding of Charlie Craig and David Mullins. The Colorado court held that denying Phillips an exemption from CADA did not violate his First Amendment rights. CADA, the court concluded, “creates a hospitable environment for all consumers,” which “prevents the economic and social balkanization prevalent when businesses decide to serve only their own ‘kind.’”
The baker argued that he did not discriminate against Craig and Mullins because of their sexual orientation: he would have been happy to sell them any other baked good in his store. Instead, he declined because designing a custom wedding cake for them would force him to “celebrate same-sex marriage” in violation of his conscience. He “seeks to live his life, pursue his profession, and craft his art consistently with his religious identity.”
Perhaps for strategic reasons, Phillips emphasized freedom of speech—freedom from compelled artistic expression—more than the free exercise of religion. The Supreme Court applies heightened scrutiny to restrictions on speech; by contrast, unless a law specifically targets or singles out religion, the court applies a lower standard of review when examining neutral laws of general applicability that have an incidental impact on religion. The US Department of Justice (DOJ), in an unusual move, supports this “compelled expression” argument.