Discrimination or Compelled Speech? Two Legal Views…

Owner of Masterpiece Cakeshop, Jack Phillips. Image from The Wall Street Journal.


In Colorado, in 2012 Charlie Craig and David Mullins visited Masterpiece Cakeshop, which was owned by Jack Phillips. The gay couple visited in hopes to order a cake for their post-wedding ceremony but were refused service after Phillips learned that the duo was planning on purchasing a cake to celebrate their marriage. Phillips cited his religious beliefs as a Christian as a reason for the denial of the transaction. The couple then left the establishment and filed a complaint to the Colorado Civil Rights Commission under the state’s Public Accommodations Discrimination Law, which prevents retail business from discrimination of disabilities, gender, race, and sexual orientation. Colorado is one of 21 states in the nation that includes a public accommodation law which helps prevent discrimination. Phillips was ordered by the state to reverse his business ethics and to seek training on elimination discrimination.


After Phillip’s disclosed that he lost 40 percent of his business after the legal battle, he decided to leave the wedding cake business and filed an appeal that landed him in the Supreme Court, thus the Masterpiece Cakeshop v. Colorado Civil Rights Commission case was born. The case held oral arguments on December 5th, 2017 and is currently awaiting a ruling later this year. The general consensus from the oral arguments was that using religion to justify discrimination could yield a dangerous rhetoric, but also that if ruled in favor of Phillip’s could open a Pandora’s box of issues and would undermine hundreds of antidiscrimination laws that have been set into place. In Newman v. Piggie Park Enterprises, Inc. similar discrimination was enacted when two African Americans were refused service at a drive-in in South Carolina due to their race and were brought to the Supreme Court where the defendant cited his religious freedom to justify his refusal of service. Granted, this case was from 1968 and was introduced after the Civil Rights Act of 1964, it has all the same elements as the current case.


Phillip’s had also argued that his freedom of speech was violated due to being forced to create the cake for the gay couple after the initial feedback from the Colorado Civil Rights Committee required him to do so and seek anti-discrimination training sessions. Phillips stated that creating cakes is a form of artistic expression and under the First Amendment, he should not be forced by the state of Colorado to engage in ‘compelled speech’ that violates his religious beliefs. The couple has argued that his artistic expression statement is false due to the fact that they were looking through a book of already created cakes and not asking him to create something new, rather choosing from a list of already made products.


Another almost identical case emerged in August of 2017, Department of Fair Employment and Housing v. Cathy’s Creations The Department of Fair Employment and Housing complained that Cathy Miller violated similar state anti-discrimination laws which prohibited businesses from refusing goods or services to anyone on the basis of several characteristics including race, gender, religion or sexual orientation. The California court ruled in favor of Miller’s right to freedom of speech and artistic expression was greater than a state’s interest in preventing discrimination and could not be used to compel speech.


There’s no doubt the Supreme Court will be using the case above when ruling a ruling later this year since the circumstances are almost identical. Forty-five states currently have anti-discrimination laws that protect individuals from several forms of prejudice/bias and Colorado’s states that any form of discrimination against any group or individual who is opposed to limiting goods or services to the oppressed are deemed as unlawful. The Masterpiece Cakeshop case is a difficult one to rule on and it’s understandable why it has taken so long to come to a ruling. On one hand if the Supreme court rules in favor of the baker the excuse for denying service to others is justifiable under religious freedom, it will continue to happen and will be taken advantage of indefinitely and years of anti-discrimination laws will be rendered pointless if an organization just has to cite their First Amendment right to deny not only gays but minorities too. If the case is ruled in favor of the gay couple, then the freedom of artistic expression and freedom of speech will be challenged. It more than likely will come down to proving that Philips was, in fact, using an artistic expression or if having made past cakes and offering them for resale constitutes as them being labeled as products and not art.



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