• At the heart of a case concerning a gay couple and their wedding cake maker is a crucial debate: Which laws should be given more weight? Those that protect civil rights and that bar public businesses from discriminating based on sexual orientation (so-called public accommodations laws) or those that defend free speech and religious freedom?
• A decision in the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is expected by June 2018.
• If the Court decides in favor of the couple, bakers across the nation may not refuse to make wedding cakes based on religious or free speech claims. They must bake for everyone; civil rights laws win.
• If the Court decides in favor of the baker, ruling that freedom of religion and free speech override civil rights laws banning discrimination, the baker, and potentially any other baker, can refuse to make wedding cakes for same-sex couples. This decision would create a dangerously slippery slope, allowing those in the service industry to withhold their services for any number of discriminatory reasons.
• A likely outcome is that the Court will send the case back to the Colorado Civil Rights Commission and ask for a retrial without the examiner who appeared to be biased against freedom of religion claims. The outcome of a retrial opens the case up to additional arguments and could draw it out further.
On December 5, 2010, Charlie Craig and David Mullins met at a party near their home in Denver. They hit it off; the following year, they became engaged. Since they couldn’t legally marry in Colorado at the time, they decided they would have the ceremony in Provincetown, Massachusetts, and then come back home for the reception. They needed a wedding cake, and their reception planner recommended the Masterpiece Cakeshop in Lakewood, Colorado.
Craig’s mother, Deb, who was visiting from Wyoming, went along with them to meet the baker and shop owner, Jack Phillips. According to Mullins, when the three sat down with Phillips, he immediately asked them who the cake was for. When he found out it was for Craig and Mullins, Phillips quickly ended the meeting, saying he would not make a cake for a same-sex wedding. “We were just mortified and embarrassed,” Mullins told NBC News.
The couple subsequently filed charges of discrimination with the Colorado Civil Rights Division, alleging that Masterpiece Bakeshop violated the Colorado Anti-Discrimination Act (CADA), which prohibits discrimination in a place of public accommodation. The Administrative Law Judge ruled in their favor, a decision that was affirmed by the Colorado Civil Rights Commission. The Colorado Court of Appeals also agreed, and held that the First Amendment does not exempt businesses open to the public from anti-discrimination laws.
The Colorado Civil Rights Commission ordered Phillips to forgo baking wedding cakes unless he agreed to bake the same cakes for same-sex couples as he would for heterosexual couples. Rather than abiding, the baker decided to stop making wedding cakes altogether, losing 40 percent of his business in the process. He appealed to the Supreme Court.
The Court heard oral arguments on December 5, 2017, precisely seven years to the day the couple met. The two sides set up a major clash between laws that ban businesses open to the public from discriminating based on sexual orientation (so-called public accommodations laws), and claims of free speech and religious freedom.
Lawyers for Masterpiece Cakeshop and its baker maintain that his wedding cakes are a form of creative expression protected by the First Amendment, and that he cannot be compelled by the government — in this case the Colorado Civil Rights Commission — to create expression with which he disagrees.
In particular, the baker claims that he would have sold the couple an off-the-shelf cake, but that forcing him to bake a custom cake for a same-sex wedding violates his First Amendment rights to both free speech and religious freedom. In its brief to the Court, representatives for Masterpiece Cakeshop wrote that artists should be “free to make their own moral judgements about what to express through their works,” and that the government should not be able to “command” artists to create “what is not in their hearts or minds.”
Lawyers for the Colorado couple argue that the state’s civil rights law prohibits discriminatory business practices, such as refusing to sell a cake because of a disdain for same-sex marriage. Any infringement on the baker’s free speech or religion is incidental and allowed by anti-bias laws, they maintain. The baker’s position, they argue, flies in the face of the Civil Rights Act and long-standing Supreme Court case law like the 1968 case of Newman v. Piggie Park, which helped to establish the concept that religious views do not supersede civil rights.
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How other chefs are getting involved
When it comes to this case, the chef community wants to be heard: 222 leading chefs, bakers, and restaurateurs from every state, plus Washington, D.C. — including Tom Colicchio, José Andrés, Anthony Bourdain, Carla Hall, Sam Kass, Christina Tosi, and Marcus Samuelsson — signed onto an amicus brief, a document written by parties not involved in the case that nevertheless have a strong interest in the subject matter and wish to advise the Court.
“When I heard about this case, I thought back to people sitting at lunch counters and not being served,” says New York City-based chef Tom Colicchio. “I’d thought that was a thing of the past, but given this case, it’s possible it’s not.” Colicchio contends that the baker’s freedom of religion claim doesn’t hold water against the couple’s violation of dignity and civil rights. “When you put your shingle out, you have to serve people — all people — when they come to your establishment. To say ‘no’ is a major civil rights violation.”
The “Chefs for Equality” brief argues that food preparation, even at its highest level, is not a core First Amendment activity. “Even when prepared by celebrated chefs, food retains a clear purpose apart from its expressive component: It is made to be eaten,” it states. “For that reason, food products and their preparation are not necessarily protected by the First Amendment.”
The chefs also write that “there is no basis in law or logic to carve out an exception for weddings or wedding cakes,” and that Phillips “is not unique in the talent, skill, and expression that he displays in his craft.” Therefore, exempting him from public accommodations laws would mean affording that exemption to countless other creative professionals. What the baker is asking the Court to do, the chefs argue in their Equality Brief, is afford him “broad constitutional immunity from long-established laws prohibiting discrimination.”
“The culinary community has joined this brief to relay a very simple message: ‘We welcome all,’” says Sarah Warbelow, legal director for the Human Rights Campaign. “If a business is open on Main Street, it must be open to everyone, regardless of who they are or whom they love.”
Chef Sam Kass, a signatory to the brief, says the case “is an example of a deep violation of people’s basic rights — and when it happens within the restaurant industry, chefs have a responsibility and opportunity to support the underpinnings of what makes our society a free democracy.” To Kass, who was chef to the Obamas and a White House food policy advisor for six years, there’s a lot at stake. “There is no question that denying service based on sexual orientation violates the ethos of hospitality, but this is way more significant. This is about being able to deny service to entire categories of people, and if that precedent is set, I don’t know how the fabric of our country can be held together.”
Amicus briefs like this one sometimes sway the Court, says William Ariza, author and a professor of first amendment and constitutional law at Brooklyn Law School. “Amicus briefs are especially valuable when the authors specialize in the field in question,” he says. But Ariza also points out that the brief has its limits. “The [Court] might look to what the chefs say in terms of informing the proposition that food is not expression for First Amendment purposes, but it’s hard to believe they would defer to them completely.”
What are the potential outcomes, and what do they really mean?
It’s anyone’s guess what the Court will decide (cases from this session must be decided by June 2018), but those following the current Supreme Court agree it will all come down to 81-year-old Justice Anthony M. Kennedy, who is a staunch defender of both free speech and of LGBTQ rights. Regarding the latter, he’s notably the author of four recent cases, including the seminal Obergefell v. Hodges, which held that same-sex marriage is a nationwide right that cannot be denied under the Constitution. “Kennedy would be loathe to allow a baker to refuse service to a same-sex couple, because he has built his legacy on the dignity rights of same-sex couples,” says Ariza. Here’s how it could shake out:
If the Court sides with the couple:
The Justices could rule in favor of the couple for different reasons:
- They could go with the argument made in the Chefs for Equality brief and find that there is no First Amendment expression in baking a cake, no matter how artistic or bespoke. This would mean bakers would not have a First Amendment defense to any public accommodations laws, and would have to bake cakes for same-sex couples as they would for different-sex couples.
- The Court could also find that baking a custom cake is an expressive work entitled to First Amendment protection, but it could still hold that the government’s interest in fighting discrimination is strong enough to compel his “speech.” “The Court could say regardless of whether it’s expression, the government has a compelling interest in enforcing anti-discrimination laws and that outweighs expressive or religious interest,” says Stephen Wermiel, fellow in Law & Government at American University Washington College of Law, where he teaches constitutional law and a seminar on the Supreme Court. In this case, that means it can force the baker to make a cake that he doesn’t want to bake.
In either of these circumstances, as Wermiel says, “the civil rights laws triumph.”
If the Court sides with the baker:
On the flip side, the Court could find that baking a custom wedding cake is creative expression entitled to the protection of the First Amendment, and that state anti-discrimination laws cannot be used to compel someone to speak or to create expression against his will.
In this case, the Court would allow this baker (and all others across the country) to refuse to make a custom cake for a same-sex couple. It’s a position that doesn’t sit well with many because it creates a slippery slope in which individuals may use freedom of speech and religion as a valid justification for the right to discriminate.
“To stretch the First Amendment to cover this wide range of goods and services would threaten civil rights law not only with respect to sexual orientation, but also with respect to race, religion, and gender,” wrote First Amendment scholar and Professor of Law Emeritus at Cornell Law School Steven Shiffrin in his amicus brief in support of the couple.
The Justices themselves seemed to have the most trouble finding a way to appropriately frame a ruling in the baker’s favor that would not result in the ability of the entire “creative” industry to snub LGBTQ weddings. During oral argument, Kennedy pointed out that siding with the baker would essentially “permit a boycott of gay marriages.” If a baker can say no, what’s to prevent a chef, a florist, or a makeup artist, from claiming the same right? Taking it one step further, as a troubled Justice Kagan did during oral argument, if you permit the baker to say “no” to a same-sex couple, what about an interracial couple, or an interfaith couple? What about an acclaimed chef who refuses to cook an anniversary dinner for a same-sex couple, or a baker who refuses to make a Bar Mitzvah cake?
Even if the Court were to limit its holding to bakers making custom cakes, this decision is fraught. “There would have to be more follow up on what is a bespoke cake, and what level of custom-made cake qualifies as expression,” Ariza says. “What about an off-the-shelf cake that a baker has run out of and is asked to remake for that same-sex couple? Is that First Amendment baking? What about a cake that is in a standard book of cakes — does a baker have to make that one? These are hard questions.”
According to Craig Konnoth, associate professor of law at the University of Colorado, those uncertain questions could lead to the restaurant business becoming “a flashpoint in warring ideologies and politics,” should the Court side with the baker. “Instead of diners looking to restaurant reviews for where to dine, they may decide where to eat based on a chef’s political views,” he says. “This kind of mingling of politics and cooking will just embroil restaurants in an ideological war and take away from the reason we eat out, which is comfort, good food, and an escape from the world around us.”
Konnonth believes that the Justices should consider this too, and enforce the public accommodations laws and the notion that restaurants are in the business of hospitality and service to all — meaning they must follow anti-discrimination laws.
The Supreme Court might not decide the case at all:
Given the turmoil surrounding this case, a potential third outcome, a rather narrow “off ramp,” is emerging as the leading possibility. During the Colorado Civil Rights Commission’s hearing, there appeared to be a few commissioners present who had a hostile view toward the freedom of religion claim made by the baker. Justice Kennedy in particular seemed quite focused on this during oral argument, offering a tense series of questions suggesting that the state of Colorado had shown hostility toward religion in ruling against the baker.
The tone of Kennedy’s questions has led many scholars to speculate that the Court will hold that CADA itself remains completely valid, but that this particular proceeding was “infected with anti-religious bias.” The Court could then send the case back for a redo, or simply invalidate the Commission’s finding.
This is the road many scholars seem to think gives Kennedy a way to preserve his commitment to both freedom of speech and the protection of gay rights. And it leaves the door open for another case, which may come after Kennedy has retired and is replaced by a Trump appointee.
Two lower courts have recently tackled this issue with divergent outcomes. In Sweetcakes by Melissa v. Oregon Bureau of Labor and Industries, a baker, Melissa Klein, refused to provide a wedding cake for a same-sex marriage. The Board of Labor Industries (BOLI) ruled in favor of the couple and imposed a fine of $135,000 on the bakery.
The Oregon Court of Appeals affirmed the ruling, finding that the bakery’s refusal was “on account of” the clients’ sexual orientation. BOLI’s order did not impermissibly burden the bakery owners’ right to free expression under the First Amendment. But in a different case in California, a judge found that baker Cathy Miller, owner of Tastries Bakery, was permitted to refuse to make wedding cakes for same-sex couple Eileen and Mireya Rodriquez-Del Rio. Kern County Superior Court Judge David Lampe ruled that Miller’s right to free speech and free expression of religion was more important than the argument that she violated the state’s anti-discrimination law. (That case is likely going to the State Supreme Court.)
While these cases are relevant for their relationship between baker and client, a case out of Minnesota in which a videographer refused to film a same-sex wedding, may be swayed by the Supreme Court’s ruling. The lower Court will inevitably be faced with the same choice: Dismantle the hard-won protections against discrimination dating back to the Civil Rights Act and effectively embolden bigotry and hate; or enforce what is at the very the core of our Constitution — equality — and of the restaurant business: hospitality.
Andrea Strong, founder of the pioneering food blog the Strong Buzz, has been writing about restaurants and food for the past 18 years. Qieer Wang is a Chinese multimedia visual artist residing in New York.
Editor: Daniela Galarza
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