On December 4, 2017, the Supreme Court of the United States heard oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, more popularly known as the “gay wedding cake case.”  At issue in this case are competing interests in First Amendment freedoms of expression and religion and the same-sex couples’ rights to equal, nondiscriminatory treatment. 

The road to the Supreme Court began in 2012 when Charlie Craig and David Mullins went into Masterpiece Cakeshop in Lakewood, Colorado to buy a cake for their upcoming wedding reception. Same-sex marriage was not recognized in Colorado at that time.  Craig and Mullins planned to get married in Massachusetts and have a reception in Colorado.  Masterpiece Cakeshop’s owner, Jack Phillips, informed the couple that he would not make them a cake for their wedding because same-sex marriage was against his Christian beliefs, although he agreed to sell them other baked goods that did not involve the wedding ceremony.

Craig and Mullins filed discrimination charges with the Colorado Civil Rights Division (the “Division”), alleging that Phillips engaged in sexual orientation discrimination. The Division found that Phillips had unlawfully discriminated against Craig and Mullins.  Phillips appealed the decision up through the Colorado Court of Appeals, but the Division’s ruling was affirmed at each step.  The Colorado Supreme Court refused to hear an appeal, and Phillips then sought an appeal at the U.S. Supreme Court, which agreed to hear his case.

Phillips argues that the State of Colorado requiring him to create a custom wedding cake for a same-sex marriage both violates his First Amendment freedom of religion and compels him to engage in artistic expression, which he characterizes as speech, against his will. Craig and Mullins compare the refusal to bake a cake for a gay couple to refusing to provide service at a restaurant or hotel to someone based upon their race, which has been unlawful since 1964, when the Supreme Court affirmed the federal government’s power to ban such discrimination.

During oral argument in Masterpiece Cakeshop, the Justices seemed split along predictable ideological lines.  The conservative bloc of Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch appeared sympathetic to Phillips.  For example, Chief Justice Roberts asked Colorado’s State Solicitor General if the State could use its anti-discrimination law to force Catholic Legal Services to provide pro bono legal work related to same-sex marriage.  Justice Alito questioned why Colorado pursued the discrimination claim when same-sex marriage was not even legal in the state at the time.  The liberal wing, Justices Breyer, Ginsburg, Sotomayor, and Kagan, supported Craig and Mullins and the State of Colorado.  Justice Kagan questioned whether other businesses, such as jewelers, hair stylists, and makeup artists, would be able to discriminate against gay couples if the decision against Phillips is reversed.

The key vote will likely be Justice Kennedy, and he was not tipping his hand. For example, he told Phillips’s counsel that permitting businesses such as Masterpiece Cakeshop to display signs announcing they do not bake cakes for same-sex weddings would be an affront to the gay community.  On the other hand, he stated that it seemed to him that Colorado was neither tolerant nor respectful of Phillips’s religious beliefs.

The Court will not issue a decision until sometime in the first half of 2018. It is possible that the Court will issue a narrow decision, focusing on the somewhat unique facts of this case; for example, holding that Masterpiece Cakeshop’s cakes are protected speech based on the artistic nature of the cakes (they are custom-made and in high demand), while “routine” goods—such as rings—or services—such as catering—are not protected speech, and a business therefore cannot refuse to provide them for same-sex marriage ceremonies.  Or, the Court may focus on the fact that same-sex marriage was not legal in Colorado at the time the Division brought its complaint against Phillips. In that case, the decision would have little effect, as same-sex marriage is now legal in all 50 states.  Hopefully, the Court will address the issue head-on and provide useful guidance on the interplay between religious freedom and freedom from discrimination, while further clarifying the rights of gay and lesbian couples in our society.