On December 5, the Supreme Court will hear oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case about whether a Christian baker has a First Amendment right to refuse to sell wedding cakes to a same-sex couple. This week, that same-sex couple, represented by the ACLU, and the Colorado commission that defended their rights, submitted their response briefs, explaining why this should be an open-and-shut case of discrimination.
If the Court rules otherwise, it will open a Pandora’s Box of discrimination against other groups.
“This case involves the straightforward application of a standard public accommodation law,” the ACLU declared on behalf of Charlie Craig and David Mullins, the couple baker Jack Phillips turned away from his shop in 2012. It doesn’t matter what Phillips believes about marriage or whether cakes are artistic expression. All that matters is that he refused to sell a product to a same-sex couple that he would sell to different-sex couples.
When the Colorado Civil Rights Commission, which also responded this week, determined that Phillips had violated the state law protecting against discrimination on the basis of sexual orientation, it did not infringe on his artistic expression. The penalty the Commission imposed “simply requires that if the Bakery chooses to sell wedding cakes to heterosexual couples, it must not refuse to sell the same product to gay couples.”
Phillips is represented by the Alliance Defending Freedom (ADF), an anti-LGBTQ hate group, and is supported by the United States government, thanks to Attorney General Jeff Sessions’ leadership at the Department of Justice. Both ADF and the United States argue that because cakes are an expressive craft, Phillips shouldn’t have to use them to “endorse” same-sex marriage. They point to a Christian activist named Bill Jack who sought to purchase cakes from other Denver bakeries with biblical anti-gay messages, but was denied. Those bakeries were not punished for discriminating when they refused, suggesting a double standard, the ADF argues.
As Phillips’ supporters echoed in their briefs, there is an attempt to convince the Court that marriage involving a same-sex couple is somehow different than marriage involving a different-sex couple. This is a necessary foundation for their claim that a cake for a same-sex couple’s wedding is somehow a message about that wedding.
But the ACLU points out that Phillips didn’t object to anything about the cake’s design or message like those other bakeries did; indeed, he refused to sell Craig and Mullins any product that would be used to honor their marriage. On another occasion, he also refused to sell a lesbian couple cupcakes for their commitment ceremony. What Phillips did was “object to who would be using the cake”, the ACLU argues:
A bakery that refused to provide cakes for the weddings of interracial or Jewish couples would be discriminating based on race or religion, even if it said it did so because it disapproved of those unions. If a business needs to know who the product is for in order to decide whether or not to sell it, the business is discriminating on the basis of identity, not making a decision about any “message” inherent in the product itself.
While the bakeries that turned down Mr. Jack refused to sell him a product they would not have sold to anyone, the Bakery here refused to sell Mr. Mullins and Mr. Craig a cake that it would have sold to any heterosexual couple. That is discrimination on the basis of a protected characteristic, regardless of whether the Bakery seeks to express or refrain from expressing any message, and therefore the application of the Anti-Discrimination Act to this conduct is not viewpoint-based.
If the Supreme Court is swayed by one of ADF’s suggested schemes of creating exceptions to public accommodation laws for “expressive” businesses, it could unravel all nondiscrimination protections for all protected classes. Here are just a few of the examples the ACLU and Commission offer involving forms of discrimination that would likely follow such a ruling:
Bakeries could refuse to provide cakes for an interracial or interfaith couple’s wedding, a Jewish boy’s bar mitzvah, an African-American child’s birthday, or a woman’s business school graduation. An architecture firm could refuse to work with a Latino family on a home remodel if it objected to sending a message of equal citizenship for Latino people. A florist could refuse to provide an arrangement for a gay person’s funeral if it objected to commemorating LGBT lives. A hair salon could refuse to style the hair of a girl born in Mexico for her quinceañera because it opposed Mexican immigration and did not want to celebrate a Mexican family’s culture. A tailor shop could refuse to alter a suit for a boy’s confirmation because it opposed the Catholic Church’s teachings. A screen printer could refuse to sell a banner announcing a Muslim family’s reunion. A social media company such as Facebook, which is no doubt “engaged in expression” when it conveys countless messages for billions of users, could decide that although most users may post messages and images concerning their weddings, interracial couples may not.
Essentially, just about any form of discrimination is arguably an “expressive” act in and of itself, so the Court can’t carve out an exception for Phillips. The briefs offer a litany of cases dating back decades where the Court has refused to tolerate discrimination on First Amendment grounds, so to do so now would be truly novel.
Phillips is looking for a “special right to refuse to sell a line of goods and services to customers because of their sexual orientation,” the Commission explains. “Colorado cannot grant Phillips this preferential treatment without granting similar treatment to others, even if their beliefs would justify refusing to serve customers based on their race or sex.”
It would also put courts in a position to try to determine on a case-by-case basis whether businesses, products, and customers’ events are expressive enough for an exemption from the law. Members of minority communities “would be left to wonder which businesses they should be concerned about visiting for fear that they will be turned away.”
The Commission likewise calls out ADF and the United States for “singling out gay people” by suggesting that the government does not have a compelling interest in preventing discrimination on the basis of sexual orientation like it does other categories such as race. The Supreme Court has said the exact opposite in the past — fittingly enough, about Colorado specifically.
When voters in Colorado passed a constitutional amendment in 1992 prohibiting the government from extending protections to LGB people, the Supreme Court ruled (Romer v. Evans) that such a law violated the U.S. Constitution’s equal protection clause by singling out LGB people for inferior treatment. Granting an exception for Phillips to treat same-sex couples differently would reverse that precedent and declare that lesbian, gay, and bisexual people do not deserve equal treatment under the Constitution. That was the entire premise of the Court’s 2015 marriage equality ruling (Obergefell v. Hodges).
What the ACLU and Commission make clear is that the stakes are high in this case. But they also make clear that it’s not particularly complicated: discrimination is wrong and the government has a substantial interest in preventing it.