Master Piece Cakes and Gay Wedding Cakes

Colorado’s antidiscrimination law prohibits places of public accommodation from discriminating based on race and forbids employers from discriminating based on race, sex or religion; the law interferes with the freedom to choose one’s customers or employees.

Image Source: https://s-i.huffpost.com/gen/2754930/images/o-GAY-CAKE-facebook.jpg

INTRO:

Chemerinsky: “Is there a constitutional right for a business to not serve customers? (The cake decorating case is being heard by the supreme court today.)

Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, which will be argued Tuesday

Colorado’s anti-discrimination law prohibits places of public accommodation from discriminating based on race and forbids employers from discriminating based on race, sex or religion; the law interferes with the freedom to choose one’s customers or employees.

Congress and the courts both deemed ending discrimination to be more important than protecting the right to discriminate.”

FACTS:

“Charlie Craig and David Mullins got married in Massachusetts and wanted to celebrate their wedding where they lived in Colorado. They went to a local bakery, Masterpiece Cakeshop, a limited liability company in Colorado, and sought to purchase a wedding cake. The owner, Jack Phillips, refused to bake the cake, saying that gay marriage violated his religious beliefs.

The Colorado Civil Rights Commission found that Phillips violated Colorado’s public accommodations law, which prohibits business establishments from discriminating, including on the basis of sexual orientation. Phillips would bake a cake for opposite-sex couples, but not for same-sex couples, a form of discrimination that violated state law. The Colorado Court of Appeals affirmed the commission’s ruling against Masterpiece Cakeshop.”

ISSUES:

The question presented states: “Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.”

Colorado’s law that prohibits business establishments from discriminating is a neutral law of general applicability. Colorado’s anti-discrimination law was not motivated by a desire to interfere with religion and it applies to all business establishments

Whether forcing Masterpiece Cakeshop to bake a cake for Craig and Mullins constitutes impermissible compelled speech in violation of Phillips’ free speech rights. The Supreme Court long has held that compelled speech violates the First Amendment. Phillips argues that baking a cake is inherently expressive activity.

The court has to face the question of whether baking a cake should be regarded as expressive activity and whether a company can make such a speech claim.

But there are other ramifications. If gays can’t be protected from discrimination, then how about blacks, or women, or discrimination based on national origin, or religion?

Under this rationale, any business could refuse to serve anyone by claiming that the anti-discrimination law constitutes impermissible compelled speech.

Kennedy is considered the swing vote in the case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, according to coverage by the New York Times, the Washington Post, the Los Angeles Times, Think Progress and the Washington Blade.

The court could try to sidestep the issue and decide / remand on different grounds.The Cake Maker’s side wants their freedom to express their beliefs and opinions. Gay rights advocates want the court to interpret civil rights laws in their favor.

LAW (with references, no need for blue book citations. This is the most important part, make sure the attorneys can answer any questions from callers on the topic. You can use bullet points):

Colorado Anti Discrimination Act

http://www.rmlawyers.com/wp-content/uploads/2015/01/04-Employment-Chap-4-Class-Materials.pdf

Colorado Revised Statutes

Colorado law section 24-34 -601, the public accommodations section of CADA

24-34-601. Discrimination in places of public accommodation – definition.

From: http://www.lpdirect.net/casb/crs/24-34-601.html

(2) (a) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or, directly or indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.

Colorado Civil Rights Laws

http://statelaws.findlaw.com/colorado-law/colorado-civil-rights-laws.html

Code Section 24-34-301, et seq. (Generally)

The Post said the court appeared “closely divided” in the case, while the Los Angeles Times reported that the Supreme Court “gave a mostly skeptical hearing” to the baker’s claim. The Blade saw “no clear indication” of how the justices would rule.

According to the Blade, reporters in the press room speculated the Supreme Court would remand the case to the Colorado Civil Rights Commission with instructions to be more tolerant of Phillips’ beliefs.

DETAILED FACTS:

Masterpiece arose when Lakewood baker Jack Phillips refused to provide a cake for a same-sex wedding. The couple filed a complaint with the Colorado Civil Rights Commission, which held that Phillips had violated the Colorado Anti-Discrimination Act (CADA). Phillips responded by saying that applying CADA to make him use his artistic talents to bake a cake for same-sex couples violated his constitutional rights to free speech and religious

At one point, Kennedy asked whether Masterpiece Cakeshop owner Jack Phillips could post a sign saying, “We don’t bake cakes for gay weddings.” Solicitor General Noel Francisco answered that it would be permissible as long as the cakes were custom-made. Kennedy “looked troubled,” according to the New York Times account, and said that position was an affront to the dignity of gay couples.

At another point, Kennedy said Colorado’s Civil Rights Commission, in ruling against Phillips, had “neither been tolerant nor respectful” of the baker’s religious beliefs. Phillips was accused of violating Colorado’s public accommodations law when he refused to make the wedding cake for Charlie Craig and David Mullins.

Phillips contends that forcing him to make a custom cake violates his sincerely held religious beliefs, violating his rights of free exercise and free speech under the First Amendment. The free speech claim is being emphasized because a ruling for Phillips on the free exercise claim would require overruling a prior Supreme Court decision against Native Americans who claimed a religious right to consume peyote.

Arguing for the Trump https://radiolawtalk.com/wp-content/uploads/2017/08/todd-kunen-1.jpgistration, Francisco said Colorado’s public accommodations law should not apply in narrow circumstances when a business owner refuses to provide a “predominantly expressive” service at a premium price.

OTHER FACTS:

Whole, whole lot of amicus curiae

Listing of docket filings (merely a listing):

https://www.supremecourt.gov/docket/docketfiles/html/public/16-111.html

ARTICLE LINKS:

16-111 MASTERPIECE CAKESHOP V. CO CIVIL RIGHTS COMMISSION

DECISION BELOW: 370 P.3d 272

CERT. GRANTED 6/26/2017

QUESTION PRESENTED:

https://www.supremecourt.gov/docket/docketfiles/html/qp/16-00111qp.pdf

Petition for a writ of certiorari filed. (Response due August 24, 2016)

http://www.scotusblog.com/wp-content/uploads/2016/08/16-111-cert-petition.pdf