“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”—First Amendment, U.S. Constitution
Yesterday, the Colorado Supreme Court considered an appeal from baker Jack Phillips whose religious freedom to operate his business, Masterpiece Cakeshop, in accordance with his faith was once again challenged by LGBT activists.1 Back in 2018, Phillips had taken his appeal to the Supreme Court over his refusal to create a wedding cake for a same-sex couple. After a complaint by the couple, Phillips was found by the Colorado Civil Rights Commission to have violated the Colorado Anti-Discrimination Act (CADA).
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The opinion for the 6-3 majority in that case was authored by Justice Anthony Kennedy. Justice Clarence Thomas wrote separately, concurring in part and concurring in the judgment, and the dissent was written by Justice Ruth Bader Ginsburg, in which Justice Sonia Sotomayor joined. The Court found the Colorado Civil Rights Commission acted with impermissible hostility to Phillips’ religious views, and its injunction ordering Phillips to create the cake violated the free exercise clause of the First Amendment. Of the Justices who considered Masterpiece Cakeshop v. Colorado Civil Rights Commission, two in the majority, Kennedy and Justice Stephen Breyer are no longer on the Court, and Justice Ginsburg died in 2020.
In the present case before the Colorado Supreme Court, a transgender attorney called into Phillips’ shop on the very day in 2017 the U.S. Supreme Court had agreed to consider Phillips’ appeal, and requested a blue cake with a pink interior to celebrate his “transition” from male to “female.” After the shop refused, Autumn Scardina subsequently filed suit.
This case again presents the conflict between the Phillips’ freedom of conscience, and Colorado’s civil rights law, although the Colorado Civil Rights Commission itself settled with Phillips’ shop over the transgender cake complaint, after he sued the state. Scardina, who was not part of the settlement of the administrative complaint, subsequently sued separately. The lower court, in a bench trial, found that Phillips’ shop had violated CADA and imposed a $500 fine, which order was upheld on appeal.
Following their 2018 decision in Masterpiece Cakeshop, the U.S. Supreme Court considered another challenge to CADA in the 2023 case of 303 Creative v. Elenis, by Lori Smith, a web designer who had pre-emptively sought an injunction against Colorado finding her in violation of CADA by refusing to create websites celebrating same-sex nuptials, based upon her religious beliefs. The Court in a 6-3 decision authored by Justice Neil Gorsuch held that websites are “pure speech” under the Court’s First Amendment jurisprudence, and Colorado could not compel Ms. Smith to create websites for weddings which violate her religious beliefs.
One question for the Colorado Supreme Court now is whether a cake that is blue on the outside and pink on the inside is sufficiently a creative expression to invoke First Amendment protection (when that’s exactly what the customer -quite cleverly- asked for)2, for Mr. Phillips not to be compelled to create it after being informed of its meaning and intended purpose.
Where does one draw the boundary between First Amendment protections and anti-discrimination laws in “public accommodation” as in Colorado?3
“Please don’t change the hypothetical, OK? Please don’t change the hypothetical … I’m not going to say it again, so just try and answer the question.”
—Justice Gorsuch, during oral argument in Trump v. Anderson, the 2024 SCOTUS case disposing of a Colorado attempt to exclude President Trump from the 2024 ballot under a 14th Amendment “insurrection” clause theory
Even in the absence of First Amendment considerations, what’s wrong with private discrimination anyway?
One example that illustrates this is the enforcement of race-based covenants in real estate. It used to be the case that landowners could impose covenants on their land (a subdivision for instance) prohibiting any owner who was part of the covenant (which is a form of contract which is bound to the land) from selling to black people.4 While it might seem that in contract law the parties to a contract can agree to an almost limitless number of possible provisions, there are some types of contracts, such as contracts to do something illegal, like murder-for-hire, or drug dealing, which are not enforceable on grounds of public policy (not to mention being crimes in themselves). In the case of race-based covenants, if there was litigation to enforce the covenant, the government, which is obliged to treat everyone equally under the law, would be enforcing racial discrimination, which it ought not do as a matter of policy (and constitutional law!). And so, race-based covenants on land are no longer considered enforceable contracts.
Imagine some hypotheticals. Hypothetical fact patterns are widely used in law school, (and at the Supreme Court) to test arguments on particular points of law.
Can a business refuse service to a particular class of people? Of course. One sees the signs from time to time: “No shoes, no shirt, no service.” While that is “discrimination” of a kind, we don’t consider it “discrimination” in the sense that civil rights laws are intended to prohibit, because being shoeless or shirtless isn’t an inherent characteristic. Race, for example, is considered an inherent characteristic, one that the person who's in the protected class cannot change, and thus it's unjust to discriminate based upon that status. By contrast, one can put on a shirt or shoes.
Sexual orientation is (arguably) an inherent characteristic, or at least I believe it to be developmentally determined. But unlike race or sex, it’s not always an obvious or clear characteristic, and as we're reminded by “gender” diversity activists, one can be bisexual, as well as all the other ++. So at least some people can chose to act “gay” or “straight” depending on their whim.
Of course, now we've got activists who claim that sex isn't an inherent characteristic, but rather, “socially constructed,” and one that can be changed just by claiming you're a member of a group. Doesn't that destroy the basis of civil rights laws?
If one's not supposed to discriminate on the basis of “status” as a member of a protected group (based on some inherent characteristic over which the person has no control), accepting that people can just “identify” makes a bit of a mess of it.
But we also have the First Amendment which protects freedom of conscience. The government shouldn't be in the business of compelling individuals to violate their religious beliefs. (But obviously, one can't have practicing human sacrifice, for example.)
Suppose that, as a hypothetical, a gay bar wanted to exclude straights, so that their customers wouldn't be wasting their time trying to pick up partners that weren't interested. In my view, they should be permitted to do so without running afoul of civil rights law.
Now obviously that's a rather silly example, because how could the management tell, unless they asked (or the straight people were wearing some kind of “straight pride” t-shirt)?5
In the Masterpiece Cakeshop case, activists have made a point of using government power to coerce the owner to create messages which violate his freedom of conscience.
In my hypothetical, if the gay bar, instead of excluding straights, wanted to exclude activists trying to proselytize against the “homosexual lifestyle” (maybe by doing nothing more than silently wearing T-shirts), they should be able to do so.
In either case, the businesses should not have to put up with a bunch of activists promoting messages they disapprove of. And in Masterpiece's instance, it'd be like a gay-owned t-shirt company being compelled to print shirts for the notorious anti-gay activists of “Westboro Baptist."6
Should they be compelled to “bake the damn cake”? I say no. And nor should Masterpiece Cakeshop.
—end—
I say “activists,” because these customers decided to sue or file a civil rights complaints rather than take their business to another establishment willing to accommodate their requests.
In kind of the same sort of de minimus expression as the “IT’S OK TO BE WHITE” posters raised on college campuses to test the limits of “hate speech” policies. It may be significant that the blue-and-pink cake was the customer’s design, rather than that of Mr. Phillips.
Sometimes drawing a line can itself be a creative expression. I recently discussed that issue in a comment thread on X prompted by the report of this latest Colorado appeal, which I’ve adapted here. (H/T to @taxman1972 for a civil and intelligent discussion)
Covenants are still used to create, for example, a homeowner’s association, which can impose dues on its members because they own land subject to the covenant.
“IT’S OK TO BE STRAIGHT”?
Best known for their slogan “GOD HATES FAGS,” and disrupting funerals. If that’s what the customer of the gay-owned T-shirt printing company requested be printed on their shirts, and the customer specified the colors of the shirts and the design, why wouldn’t (under Colorado’s law) the t-shirt shop have to print their shirts? It’s not the t-shirt shop’s “creative expression,” is it?