Preview of Masterpiece Cakeshop Argument on First Amendment Challenge to Anti-Discrimination Statute

Professor Ruthann Robson, City University of New York (CUNY) School of Law

Set for oral argument Tuesday, December 5, 2017, the high visibility case of  Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission can be seen as a clash of constitutional principles of individual conscience vs. equality, or as a federalism case, or as part of the backlash to LGBTQ rights, or as part of the rise of religiously-motivated challenges to secular laws.

Recall that a cake-maker seeks the right to refuse to make a cake for a same-sex wedding, asserting an exemption from Colorado's anti-discrimination law on the basis of the First Amendment's Free Speech and Free Exercise Clauses. In the state proceedings, the Colorado Administrative Law Judge (ALJ) rejected the contention that "preparing a wedding cake is necessarily a medium of expression amounting to protected 'speech,' " or that compelling the treatment of "same-sex and heterosexual couples equally is the equivalent of forcing" adherence to “an ideological point of view.” The ALJ continued that while there "is no doubt that decorating a wedding cake involves considerable skill and artistry," the "finished product does not necessarily qualify as 'speech.'" On the Free Exercise claim, the ALJ rejected the contention that it merited strict scrutiny, noting that the anti-discrimination statute was a neutral law of general applicability and thus should be evaluated under a rational basis test.   A Colorado appellate court affirmed in a lengthy opinion, rejecting the First Amendment claims.

On the First Amendment speech claim, the initial hurdle for the cakemaker is establishing that the cake constitutes speech.  The cakemaker argues that he is a "cake artist." The Court has held that symbolic speech needs to convey a particularized and understood message, Spence v. Washington (1974), but that includes the "unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll," Hurley v. Irish American Gay Group of Boston (1995).  The cakemaker has also argued that the cake itself is so central to the wedding as to be a participant. Thus, the cakemaker as business owner should be able to refuse to make cakes for events with which he disagrees otherwise his speech is being compelled, akin to the landmark flag salute case of West Virginia Bd. of Ed. v. Barnette (1943). 

On the religious claim, the cakemaker essentially argues that the Colorado anti-discrimination law is not a law of neutral and general applicability because it includes sexual orientation as a protected ground and therefore targets (certain) religions, and thus strict scrutiny applies.

On both claims, the oral arguments will most likely include explorations of the slippery slopes.  If the cake is art, then what about restaurant dinners? Photography? Bed and breakfasts?  If the cake is akin to a participant in the wedding celebration, then would the rule extend to birthdays? And can the exemption for individual conscience be limited to sexual orientation?  What about race? Ethnicity or national origin? Gender?

There are a little less than 50 amicus briefs on each side.  The Court has allowed the Solicitor General of the United States to participate in oral argument on the side of the cakemaker, and for the respondents (the Colorado Civil Rights Commission and the original would-be customers) to both participate.

The case has attracted extensive commentary (here's a good round-up by Edith Roberts on SCOTUSBlog) and there is certainly much more to come.