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The US Supreme Court’s next big case on LGBTQ rights began with a cake.
This week, the Court heard arguments in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission.
The case goes back to 2012. In July of that year, Charlie Craig and David Mullins, a same-sex couple, went to Masterpiece Cakeshop in Lakewood, Colorado, to try to buy a cake for a wedding reception. The owner, Jack Phillips, refused the request, arguing that due to his Christian beliefs, he opposed same-sex marriages and did not want to do anything that looked like an endorsement of a same-sex wedding.
Craig and Mullins filed charges of discrimination in response, citing a Colorado law that prohibits discrimination based on sexual orientation by public accommodations (places that are open to the public, such as hotels, restaurants, and bakeries).
The issue comes down to one basic fact: Phillips is trying to discriminate against same-sex couples by denying them a service — wedding cakes — that he offers to different-sex couples, with the only key difference here being that one couple is gay and the other is straight. That is discrimination based on sexual orientation, Craig and Mullins argue. The Colorado Civil Rights Division, an administrative law judge, and the Colorado Court of Appeals sided with the couple.
But Phillips appealed the case to the Supreme Court. He argues that he’s not really discriminating against same-sex couples, because he would have served Craig and Mullins any non-wedding goods that they asked for. His only issue is that from his perspective, baking the couple a wedding cake would force him to celebrate an act he’s opposed to — and forcing him to do that, he argues, violates his First Amendment rights to free speech and religious expression.
Those on Craig and Mullins’s side argue that Phillips’s claims seriously misunderstand how nondiscrimination laws work. It’s not about forcing Phillips or anyone else to celebrate anything; it’s only about discrimination, which carries no constitutional protections. If you provide any service to one group but not another, that is discrimination. And if the group you’re discriminating against is protected under the law — as is true in Colorado in this case — that’s illegal discrimination.
Still, Phillips has a big ally on his side: the US Department of Justice, overseen by President Donald Trump and Attorney General Jeff Sessions. It filed a friend-of-the-court brief supporting Masterpiece Cakeshop’s legal arguments, which could influence the Supreme Court.
The outcome of the case could reach far beyond one bakery, with implications for nondiscrimination laws across the country. The Supreme Court could rule in favor of Craig and Mullins and solidify the strength and reach of nondiscrimination laws, or it could rule in favor of Phillips and potentially create a massive loophole in civil rights laws — not just for sexual orientation, but potentially for any other category protected by these laws, including race, sex, and religion.
“If the Court decides the case saying that civil rights laws violate free speech rights of for-profit commercial businesses, we’re in trouble,” Elizabeth Sepper, a law professor at Washington University in St. Louis, told me. “Even if the Court tries to use all the tools that Masterpiece [Cakeshop] has tried to throw at the wall, from, ‘This is an expressive business,’ to, ‘This is about sexual orientation,’ to, ‘This is just about marriage,’ it’s going to be very hard to contain on any of those grounds.”
The case for Masterpiece Cakeshop
Masterpiece Cakeshop’s attorneys, including members of the anti-LGBTQ advocacy organization Alliance Defending Freedom, argue that Phillips, as a baker, is an artist, and that Colorado’s nondiscrimination law stifles his artistic expression. They claim that by forcing Phillips to make and sell a cake to a same-sex couple, the government would essentially be telling him to support a same-sex marriage that he is genuinely opposed to on religious grounds.
To this end, Masterpiece Cakeshop’s legal brief emphasizes that “Phillips serves LGBT individuals; he simply declines to create art that celebrates same-sex marriage,” such as, from his view, a wedding cake. Each of Phillips’s cakes, the brief states, “announces the couple’s union as a marriage and conveys celebratory messages about the event.” Since Phillips is opposed to same-sex marriage, forcing him to serve a same-sex couple would, in his view, force him to express support for their marriage.
Phillips’s attorneys point out that he even offered to provide other kinds of cakes, brownies, or cookies to Craig and Mullins — showing that the issue was not that the men are gay. But he did refuse all wedding cakes to the couple, including cakes that were made for other customers before and a “nondescript” cake — showing that he was singling out gay people in refusing at least one kind of service.
The central point for Phillips is that context matters. When he made his past cakes celebrating marriages, he had different-sex couples, not same-sex couples, in mind. (Same-sex marriages weren’t even legalized in Colorado when Craig and Mullins tried to buy a cake from Phillips; they were getting married in Massachusetts and then holding a reception in Colorado.) Forcing him to produce for and sell to all couples, the brief argues, robs his cakes of that context and warps the original intent of his expression.
Phillips’s case has also focused largely on the custom nature of his cakes, emphasizing how much artistic care and, crucially for his case, expression goes into the product.
“Before designing [a wedding cake], [Phillips] meets with the couple to learn their desires, personalities, preferences, and wedding details,” Jeremy Tedesco, senior counsel at Alliance Defending Freedom, wrote in an email. “Then he sketches the design on paper (often multiple times), sculpts it into shape, creates ornamental and symbolic details to place on it, and decorates it using artistic techniques like hand-painting, air-brushing, and sculpting. Each wedding cake that Jack Philips creates announces the couple’s union as a marriage and conveys celebratory messages about the event.”
The brief invokes a provocative comparison: “African-American sculptors who have designed Latin-cross-shaped sculptures for Lutheran churches would know that those same items express different messages if created for an Aryan Nations Church event.” Essentially, a black sculptor should not be forced to sell crosses to racists just because he sells them to Lutheran churches, given the context involved.
The brief goes on:
Other facts confirm that Phillips is concerned not about the sexual orientation of his customers but the ideas that his wedding cakes convey. Phillips would decline to create a wedding cake celebrating a same-sex marriage regardless of whether the customer is a same-sex couple or a heterosexual parent purchasing the cake. … Similarly, Phillips would celebrate a marriage between a man and a woman even if one or both spouses identified as gay, lesbian, or bisexual.
In short, Phillips would supposedly serve gay people — therefore showing, in his view, that he doesn’t discriminate against them. He’s just not willing to express any kind of support for same-sex marriages, and he believes creating and selling a wedding cake to a same-sex couple would do that.
But the outcome is the same as if Phillips outright refused specific services to all gay individuals simply because he’s homophobic or for any other reason: He will provide some services to different-sex couples but not to same-sex couples.
The case against Masterpiece Cakeshop
The Colorado Civil Rights Commission and Craig and Mullins, represented by attorneys from the American Civil Liberties Union (ACLU), argue that the case has nothing to do with Phillips’s rights to free speech and religious expression.
Phillips is not being forced, they argue, to write anything specific — such as, “I support marriage equality!” — on a wedding cake, which would amount to compelled speech. He’s being asked, instead, to provide the same product to both different-sex and same-sex couples. Since he provides wedding cakes for different-sex couples, they argue, he should provide those services to same-sex couples.
But Phillips not only refused to produce even a custom cake with a specific design; he also refused to provide any wedding cake to Craig and Mullins, including “a nondescript cake that would have been suitable for consumption at any wedding.” That’s illegal, the couple argues.
The basis for this is a state law, the Colorado Anti-Discrimination Act, that declares, in short, that it’s unlawful to deny goods or services to someone due to their disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.
Particularly after the Civil War and during the 1950s and ’60s, these kinds of laws were passed — including at the federal level — to prevent racial segregation. The idea was straightforward: If a restaurant or other public accommodation serves a white person, it should also offer the same services to a black person.
The same concept, under Colorado’s law, applies to sexual orientation. Federal law and most state laws don’t explicitly include sexual orientation as a protected category, but Colorado does. So, Craig and Mullins argue, same-sex couples like them should be able to get the same services that different-sex couples get at all public accommodations.
“Here, the Anti-Discrimination Act regulates conduct (discrimination in sales) regardless of whether, or what, it communicates,” Craig and Mullins’s attorneys write. “It forbids a restaurant from refusing to seat African-American families, regardless of whether the refusal is based on the restaurant’s sincere belief that racial integration is a sin or that seating African-American and white families together expresses support for racial integration.”
Craig and Mullins claim that this does not compel Phillips to make any sort of speech. They argue that baking someone a cake, especially at a for-profit business open to the general public, doesn’t necessarily mean that someone supports the marriage or any aspects of the couple’s lives.
The couple’s attorneys note, “As a florist who refused to provide flowers for a same-sex couple’s wedding acknowledged at her deposition, ‘providing flowers for a wedding between Muslims would not necessarily constitute an endorsement of Islam, nor would providing flowers for an atheist couple endorse atheism.’”
As another example, raised by one of the friend-of-the-court briefs filed in the case, what if a husband orders a cake to apologize to his wife, with “I am sorry” written on it? That speech would be attributed to the husband, not the baker. The baker’s role in creating the cake may not even immediately come to mind.
There’s also a deeply personal element in this case. When someone is denied a service, the harm doesn’t come just from the fact that he will now have more trouble getting, say, a wedding cake. The harm is also rooted in the fact that another person is telling someone that he is not worthy of something everyone else is worthy of just because of his sexual orientation, race, or some other aspect of his identity.
Naya Taylor, a transgender woman, explained the harm after she was denied transition-related health care: “When they said, ‘we don’t have to treat people like you,’ I felt like the smallest, most insignificant person in the world.”
So it’s not that Phillips is being forced to express his support for a same-sex marriage; he is merely being told, Craig, Mullins, and the Colorado Civil Rights Commission argue, to provide the same services to everyone regardless of their sexual orientation — not just so same-sex couples can buy a wedding cake like everyone else can, but also to protect their basic dignity as human beings.
This is, really, a basic explanation of how nondiscrimination laws work for public accommodations. They are fully intended to stop a business that serves the public from denying any service, whether it’s one or all the products a business serves, to people based on certain aspects of their identity. In Colorado, those protected aspects of identity include sexual orientation. And there are not supposed to be any exceptions here — the Supreme Court has declared that discrimination by businesses “has never been accorded affirmative constitutional protections.”
This could have big implications beyond Masterpiece Cakeshop
In arguing against Masterpiece Cakeshop, Craig, Mullins, and the Colorado Civil Rights Commission also warn that what Phillips and his attorneys are proposing is dangerous — because if the bakery wins, it could open a massive loophole in nondiscrimination laws.
“Creating an exemption from this basic principle for ‘expressive’ businesses would dramatically weaken anti-discrimination laws,” the Colorado Civil Rights Commission argues. “If forbidding discrimination by these businesses is constitutionally equivalent to the forced transmission of a government-favored message, a wide range of commercial entities would have a license to discriminate, whether motivated by religious belief or raw animosity.”
This could lead to dangerous consequences. If the Supreme Court rules in favor of Phillips, could any business now cite free speech or religious expression to discriminate? Would a bakery be allowed to refuse to serve interracial couples due to genuine disapproval of such marriages? Could a white-owned restaurant refuse to serve black people because it would indicate support for racial integration? Could a store refuse to sell birthday materials to a black man simply because the white owner is racist and does not want to take part in any event that celebrates a black man? The list goes on and on.
Masterpiece Cakeshop simply rejects such concerns, arguing that many of them are far-fetched and that the ruling could be narrowed to products that are expressive or custom-made. Phillips says that all his wedding cakes are custom-designed (because they are not premade) and expressive (because they reflect his celebration of certain marriages), so they fall into this category.
This could, however, apply to a lot of businesses. A restaurant owner, for example, could argue that each of his dishes is made to order and that serving a same-sex couple on a date expresses support or tolerance for their sexual orientation. Perhaps a hotel manager could make a similar case for setting up a room for an interracial couple and letting them stay and — possibly have sex — there. Or a florist could similarly contest having to make bouquets for an interreligious wedding.
For those on Craig and Mullins’s side, it’s a question of where this ends. A business could try to argue, if Masterpiece Cakeshop’s stance is upheld, that all of its products are custom-designed, even if they’re “nondescript,” because they’re not premade. And they could argue that the products are expressive by attaching some sort of message, however vague, to them. Could that let businesses avoid nondiscrimination laws?
The bakery also claims that competition will stop discrimination in the real world: “[P]eople like Phillips often face significant opposition, and market forces discourage them from exercising their beliefs. … Few will have the courage of conviction to endure the harassment — and death threats — that Phillips still experiences today.”
At the very least, Phillips’s attorneys acknowledge that the standard they’re arguing for could allow a bakery to refuse service to an interracial couple: “[A]ssuming such a cake artist objects only to the message of those wedding cakes and otherwise serves people of all races equally, the compelled-speech doctrine would apply.” So the standard proposed by Phillips could, by his own admission, be used for not just anti-gay discrimination but racial discrimination as well.
Even if a court ruling were narrowed to only allow Phillips’s standard for cases involving gay people, this would still pose widespread consequences: It could effectively single out gay people as legally legitimate targets for discrimination, even as other groups remain protected.
On a more technical level, both sides also disagree on whether “strict scrutiny” — a higher level of judicial review — should apply to this case. Phillips claims it does; the other side says it does not. In general, requiring a higher standard of judicial review would make it more difficult for the government to challenge discrimination from a business like Masterpiece Cakeshop.
The biggest concern for civil rights advocates, though, is that a ruling in favor of Masterpiece Cakeshop would open a massive hole in all nondiscrimination laws.
Most states still don’t prohibit anti-LGBTQ discrimination
If the Supreme Court does rule in Craig and Mullins’s favor, it would preserve today’s nondiscrimination laws as they are. But this is somewhat limited in its effect on LGBTQ rights — because most states and the federal government don’t explicitly protect LGBTQ people from the kind of discrimination that Masterpiece Cakeshop is defending.
Under federal and most states’ laws, LGBTQ people aren’t explicitly protected from discrimination in the workplace, housing, or public accommodations. This means that someone can be fired from a job, evicted from a home, or kicked out of a business just because an employer, landlord, or business owner doesn’t approve of the person’s sexual orientation or gender identity.
But federal and most state laws do ban discrimination based on race, religion, nationality, and sex in the workplace, schools, and other settings. This is what the Civil Rights Act and other federal and state civil rights laws that followed were about.
Civil rights advocates argue that existing bans on sex discrimination should already shield LGBTQ people from discrimination. For example, if someone discriminates against a gay man, that’s largely based on the expectation that a man should only love or have sex with a woman — a belief built on the idea of what a person of a certain sex should be like. Similarly, if someone discriminates against a trans woman, that’s largely based on the expectation that a person designated male at birth should identify as a man — again, a belief built on the idea of what a person of a certain sex assigned at birth should be like.
The courts have yet to fully uphold this argument. But even if they did, at least under federal law that would only create explicit protections in the workplace, housing, and schools — but not public accommodations — for LGBTQ people. That’s because federal civil rights laws don’t ban sex discrimination in public accommodations.
A Supreme Court ruling in favor of Craig and Mullins would mean that when a local, state, or federal body enacts a nondiscrimination law for LGBTQ people, there would be no loopholes for people like Phillips to get around those laws. But until all states and the federal government pass nondiscrimination statutes that include LGBTQ people, the biggest loophole is the lack of explicit civil rights protections for sexual orientation and gender identity in existing law.
