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Opinion: Many ways for SCOTUS to slice the Masterpiece Cakeshop case
By Amin Sadri | Emory Law | Feb 26, 2018 12:02:00 AM

Like clockwork, the U.S. Supreme Court saves its opinions in the most high-profile cases for the last days before the Court recesses for the summer. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, argued in December, is likely to be one of those cases. In 2012, David Mullins and Charlie Craig stepped into Masterpiece Cakeshop in Lakewood, Colorado to discuss with its owner, Jack Phillips, a cake for their upcoming wedding reception. While same-sex marriage was still not recognized in Colorado, Mullins and Craig planned to get married in Massachusetts where the wedding was legal and return to Lakewood for a reception. For Phillips, his shop and life’s work is devoted to observing God at all times. While he closes his shop on Sundays, it’s Phillips’ choice of work—avoiding cakes with offensive messages or that celebrate events and ideas that violate his beliefs—that is central to his religious observance. He would no sooner make a cake for a Halloween party than he would take the Lord’s name in vain. When Mullins and Craig learned that Masterpiece and Phillips would not sell them a cake, they filed with the Colorado Civil Rights Commission claiming a violation of Colorado law.

Phillips argues that while religious beliefs alone may not be sufficient to support his claim, the combination of his religious beliefs and the inherent artistic quality of cake design makes his denial of service legal. Phillips’ argument hinges on the idea that custom cake design for a wedding is more akin to art and merits First Amendment protections that would not apply to a pre-made cake sold over the counter. If Phillips’ argument holds true, the case would be analyzed under a strict scrutiny constitutional standard instead of a rational basis standard, likely handing the case to Phillips.

For Mullins and Craig, the case is a pure question of discrimination. Whether religiously motivated or not, they maintain they should not have been denied services that the State of Colorado says they should have received. They argue that it is illogical for Phillips to be willing to sell them a blank sheet cake or a pre-made cake from his display cabinet, knowing that the cake would be used to celebrate their wedding, but unwilling to bake a custom cake for them.

There is yet an extra wrinkle. It is rare for the U.S. Supreme Court to hear a case with a factual question, but there is one in this case. Mullins and Craig hold that they were denied service based on their sexual orientation while Phillips argues it is because his custom cake would be used for a same-sex wedding reception. Mullins and Craig maintain that Phillips would not sell them any cake from his shop, even one already on sale in the window, while Phillips insists he was willing to sell them anything pre-made, but not a custom cake.

It is impossible to predict how the court will rule. The two clearest paths would be to either rule that Phillips’ cakes are protected acts of artistic expression or that they’re not, with one side outright winning. However, the court’s recent decisions in law and religion indicate that the justices are not afraid of a more nuanced decision that includes a greater percentage of the justices. In Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court issued what looks at first like a 7-2 decision, but in actuality is more a 4-2-1-2 opinion with three different concurring opinions and a dissent, with everything hanging on a footnote. If not for the limiting language of footnote 3, ruling that the case was only applicable in situations of playground resurfacing, then it is possible there would not have been a majority at all.

The Court may be headed for a similar outcome here. The Court could limit its ruling to either these specific facts, or only those cases involving cakes, etc. Additionally, a ruling may make it clear that the limit would only apply to custom cakes designed by a baker, but not pre-made cakes sold at the counter. There are many ways for the Court to slice the cake for this specific case, but each new idea seems likely to offend one party or another. The real answer to this problem is one that many people choose not to acknowledge: time.

With the prevalence of discussions within our culture over LGBTQ issues, there will likely be fewer people who regard religious practice the same way Jack Phillips does. Perhaps not his children, but maybe his grandchildren will open their own shop with the view that they can bake a custom cake for a same-sex wedding without compromising their religion. This answer is not a legal one, but perhaps a legal answer is not really what is needed. These clashes between religion and evolving cultural norms have been going on for centuries in different forms, and it would be naïve to think that this case is the last one we will see. Instead, we should focus on seeking as much religious freedom for those who practice it and civil freedoms for all.

Amin Sadri (JD 2016, LLM 2017) is the Litigation Coordinator for the Center for the Study of Law and Religion's Restoring Religious Freedom Project, which is directed by Mark Goldfeder, Senior Lecturer at Emory Law and Spruill Family Fellow of Law and Religion.