Blog

On June 26, 2017 the US Supreme Court said it would decide whether a business has the right, under the First Amendment, to deny services to a class of people protected under a state anti-discrimination law. Masterpiece Cakeshop, et al. v. Co. Civil Rights Comm’n, et al.

The Masterpiece case arose from a Colorado Bakery’s refusal to make a wedding cake for a gay couple. In 2012, when same-sex marriages were not yet legal in Colorado, Charlie Craig and David Mullins asked Masterpiece Cakeshop, Inc. (a Lakewood Colorado bakery) to make a cake to celebrate their same-sex wedding (they planned to marry in Massachusetts, but celebrate with friends in Colorado). The owner of Masterpiece, Jack Phillips, declined, stating that his religious beliefs prevented him from making a cake for a same-sex marriage, but that he would sell them any other baked goods.

After being denied service, Mullins and Craig filed charges with the Colorado Civil Rights Division alleging discrimination based on sexual orientation – a practice expressly prohibited by Colorado’s Anti-Discrimination Act (CADA). C.R.S. § 24-34-301 to -804. In response, Masterpiece claimed that the prohibitions in CADA do not trump Masterpiece’s First Amendment rights. The Civil Rights Division disagreed, and the administrative law judge presiding over the matter found in favor of Mullins and Craig. The Civil Rights Commission approved the judge’s order, and issued a cease and desist order to Masterpiece to refrain from similar conduct in the future.

Masterpiece appealed the Commission’s order to the Colorado Court of Appeals. In affirming the Commission’s order, the Colorado Court of Appeals rejected Masterpiece’s attempt to distinguish opposition to “same sex marriage” from opposition to “sexual orientation”, finding that the argument created a distinction without a difference.  The Court of Appeals also rejected Masterpiece’s two arguments under the First Amendment: (1) that the Commission’s order violated Masterpiece’s free exercise of religion by forcing it to engage in conduct that conflicts with its religious beliefs; and (2) that the Commission’s order violated Materpiece’s right to free speech by compelling it to express support for same sex marriage. As to the free exercise of religion, the Court of Appeals applied the rational basis test based on the neutral impact of the law, which was “not designed to impede religious conduct and does not impose burdens on religious conduct not imposed on secular conduct.” Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, ¶64. The Court of Appeals held that there was a rational basis for CADA: “Without CADA, businesses could discriminate against potential patrons based on their sexual orientation. Such discrimination in places of public accommodation has measure adverse effects.” Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, ¶102. As to free speech, the Court of Appeals held that “because CADA prohibits all places of public accommodation from discriminating against customers because of their sexual orientation, it is unlikely that the public would view Masterpiece’s creation of a cake for a same-sex wedding celebration as an endorsement of that conduct.” Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, ¶64.

Masterpiece appealed to the Colorado Supreme Court, but the Colorado Supreme Court denied certiorari, effectively embracing the Court of Appeals decision.

Masterpiece then appealed to the US Supreme Court. The United States Supreme Court’s decision to grant certiorari creates the possibility of regulatory whiplash for businesses who have spent the last year complying with the Court of Appeals decision. In Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014), the US Supreme Court found that the religious beliefs of owners, such as Phillips, can be imputed to their businesses, such as Masterpiece, for purposes of analyzing the free exercise of religion. The Supreme Court will write the next chapter in religious rights for corporations when it unveils its decision in Masterpiece. Regardless of the outcome, the decision will have far-reaching impacts for businesses across the nation.