By Daniel Bennett, John Brown University
Last month, the U.S. Supreme Court announced it would review Masterpiece Cakeshop v. Colorado Civil Rights Commission. It promises to be one of the most important First Amendment cases since 1990’s Employment Division v. Smith.
The case involves Masterpiece Cakeshop’s Jack Phillips, who was approached by a same-sex couple about creating a cake for their wedding. Phillips declined their request on faith-based grounds – Phillips does not make certain kinds of cakes, including cakes for same-sex weddings, cakes infused with alcohol, or cakes commemorating Halloween.
Phillips’ refusal was met with a complaint from the Colorado Civil Rights Commission, which, after an administrative hearing, found that Phillips had discriminated against and violated the civil rights of the couple. Phillips was ordered to retrain his employees, and he faces penalties if he refuses to create wedding cakes for same-sex weddings in the future.
Backing Phillips in his challenge to the commission’s ruling is Alliance Defending Freedom, the largest Christian conservative legal organization in the country. Labeled an “extremist group” by the Southern Poverty Law Center, ADF has defended many clients similar to Phillips in recent years—including a florist, photographer, and screen printer—who have faced penalties for refusing to advance certain messages in their work or creative endeavors.
Despite different facts across cases, ADF has regularly leaned on the compelled-speech doctrine in defending these clients. For example, ADF argues that Colorado’s ruling amounts to forcing a citizen to endorse a message that he disagrees with. ADF cites West Virginia v. Barnette, in which the Court said, “If there is any fixed star in our constitutional constellation, it is that no official…can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”
In Masterpiece Cakeshop, ADF argues that the First Amendment should protect Phillips from endorsing messages he objects to, writing, “[Phillips] declined to create custom art for a specific event because of the message it communicated, not because of the persons requesting it.” That is, while Phillips would serve any person, he would not serve any event.
On the opposing side, the American Civil Liberties Union argues that Phillips’ denial amounts to unconstitutional discrimination, and that the act of baking a cake is not protected expression under the First Amendment. In other words, the ACLU argues that this case is not about compelled speech because Phillips’ activity is not speech at all, but rather conduct.
In many ways this case is a culmination of the inherent tensions between the First and Fourteenth Amendments. In 2008, a diverse group of legal scholars hinted at inevitable conflicts between anti-discrimination statutes and the free exercise of religion. They disagreed about the appropriate solutions to these problems, but they all recognized the forthcoming legal storm.
This case is also natural consequence of Obergefell v. Hodges. When the Supreme Court recognized a constitutional right to same-sex marriage, Chief Justice John Roberts predicted that cases like Masterpiece Cakeshop would be coming. “Hard questions arise,” Roberts wrote in dissent, “when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage.”
As far as it will clarify the scope of the First Amendment after Obergefell and the relationship between free exercise, free speech, and equal protection, the stakes of Masterpiece Cakeshop could not be higher. Oral arguments have not yet been scheduled, but should take place later this year or early next year. Stay tuned.
Daniel Bennett is an assistant professor of political science at John Brown University. He is the author of Defending Faith: The Politics of the Christian Conservative Legal Movement (University Press of Kansas). He is on Twitter at @BennettDaniel.