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Constitutional Law,
Civil Rights

Jul. 6, 2017

Cake case has simple facts, far-reaching implications

Dave Mullins and Charlie Craig walked into a bakery for a wedding cake. Jack Phillips, owner of Masterpiece Cakeshop, then walked over. As soon as he understood that Dave and Charlie were the happy couple, Phillips told them that he would not sell them a wedding cake because he had religious objections to gay people getting married.

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Jack Phillips, the operator of Masterpiece Cakeshop in Lakewood, Colo., Oct. 30, 2014. (New York Times News Service)

Everyone who was there agrees that the entire interaction lasted less than a minute. Dave Mullins and Charlie Craig, together with Charlie’s mother Debbie, walked into a bakery just outside Denver to shop for a wedding cake in July 2012. They sat down at a consulting table. Jack Phillips, owner of Masterpiece Cakeshop, then walked over. As soon as he understood that Dave and Charlie were the happy couple, Phillips told them that he would not sell them a wedding cake because he had religious objections to gay people getting married. Stunned, the family left. They hadn’t even gotten a chance to discuss what they wanted their cake to look like. Phillips had turned them down simply based on who Dave and Charlie were.

Since Colorado is one of 21 states prohibiting discrimination based on sexual orientation, Dave and Charlie decided to file a discrimination complaint against the Cakeshop. Two administrative bodies held that yes, the denial of service based on sexual orientation had violated Colorado’s Anti-Discrimination Act. The Colorado Court of Appeals agreed. On June 26, nearly five years after Dave and Charlie’s attempt to shop for a cake, the U.S. Supreme Court granted certiorari in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case will be briefed and argued this fall.

As a nation, we decided long ago that businesses open to the public should be open to everyone on the same terms. No one should be turned away from a store or denied service simply because of who they are. Courts dealt with related issues during the African-American civil rights movement, and consistently held that religious faith could not justify refusals of service that were otherwise prohibited by law. For example, in Newman v. Piggie Park Enterprises, a South Carolina court rejected a claim by the owner of a barbecue restaurant that religious objection to racial integration justified his refusal to seat African-American customers. Freedom of religion is an important American value, and we all have the right to believe as we choose, but that freedom does not give anyone the right to impose our beliefs on others, or to violate a generally applicable law. The Supreme Court affirmed this principle in Employment Division v. Smith, a landmark 1990 decision authored by the late Justice Antonin Scalia.

More recently, a series of courts in cases analogous to Masterpiece have held that neither business owners’ right to free exercise of religion, nor their right to be free from government-compelled speech, justified their refusal to provide wedding-related services to same-sex couples. These decisions have soundly rejected arguments that providing goods or services for a wedding constitutes “participation” in the wedding ceremony or gives the impression that the business owner personally endorses the marriage.

Many business owners, including Phillips at Masterpiece, have contended they are not discriminating on the basis of sexual orientation because they are willing to sell other goods and services to gay customers, just not the wedding-related ones those customers set out to purchase. But refusing to fill an order because of who wants to place it is discrimination, pure and simple — as the New Mexico Supreme Court noted in Elane Photography v. Willock, when it observed that a restaurant willing to serve appetizers but not entrees to members of a protected class would still be engaging in illegal discrimination.

The Masterpiece Cakeshop case has very simple facts, because the interaction giving rise to it was so short. Phillips cannot argue that he refused to bake a particular cake for Dave and Charlie because he objected to the lettering or the caketopper they sought — because he didn’t even let the conversation get that far. He was unwilling to sell Dave and Charlie any “wedding cake” because of their sexual orientation, in clear contravention of Colorado law. Phillips has also admitted refusing orders from other same-sex couples on multiple prior occasions, including one where two women were turned down when they sought to order a batch of cupcakes for a family-friendly picnic celebrating their committed relationship. The record also reflects that Masterpiece Cakeshop was willing to entertain an order from a caller who requested a “wedding cake” commemorating the union of a male and female dog, raising many questions about where Phillips is purporting to draw lines.

Some have asked why the ACLU invests resources in fighting a seemingly small battle about a cake, at a time when many gay and especially transgender people around the country are struggling to access health care, housing, and other basic necessities. But it was never just about the cake, and those broader struggles are exactly why the Masterpiece Cakeshop case is so important. If a commercial baker were allowed to refuse a wedding cake order based on the sexual orientation of the customers, that same principle would allow any other public accommodation — including a hospital, a pharmacy, a homeless shelter, a bank, or the only gas station in a remote area — to legally turn people away on religious grounds. These concerns aren’t merely theoretical, even in California; the ACLU recently filed suit on behalf of a Sacramento-area transgender man whose surgery was cancelled because of the hospital’s religious objections. Granting a broad license to discriminate would have far-reaching damaging consequences. And that’s what Dave and Charlie’s lawyers, at the national ACLU’s LGBT & HIV Project, the ACLU of Colorado, and the Denver firm of King & Greisen LLP, are really fighting to prevent.


Ben Armistead

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