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Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

On Tuesday, December 5, 2017, Bernabei & Kabat partner, Peter Whelan, and senior associate, Kristen Sinisi, were admitted to the bar of the Supreme Court of the United States. The attorneys are now admitted to practice law before the highest court in the United States.

After taking their oath of admissions, Mr. Whelan and Ms. Sinisi observed oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a high-profile case in which a Colorado bakery in 2012 refused to sell a wedding cake to a same-sex couple because the owner’s religious beliefs conflicted with same-sex marriages. The Colorado Civil Rights Commission enforced a state statute against the bakery, which prohibited places of public accommodation from discriminating on the basis of protected classes, including sexual orientation. The bakery appealed, and the Colorado Court of Appeals affirmed the Commission’s ruling. The bakery asked the Supreme Court of the United States to hear the case, which it agreed to do in June 2017.

At oral argument, the Court’s four liberal justices began by questioning whether the bakery’s production of baked goods constituted expressive speech entitled to First Amendment protection. The bakery argued that the designing and crafting of a custom wedding cake constituted the bakery’s expression of its own views regarding marriage, and therefore, compelling a bakery to design a cake for a same-sex wedding to which the bakery owner had religious objections violated the First Amendment prohibition against compelled speech.

The bakery conceded, however, that the First Amendment did not allow it to deny the sale of fungible, off-the-shelf products to members of protected classes. For example, the bakery agreed that if it produced large quantities of a particular cupcake and displayed the cupcake for sale in its window, it could not refuse to sell the cupcake to same-sex couples for use at their weddings because the cupcakes did not implicate First Amendment rights. Counsel for the bakery asserted that the bakery completed its expressive process when it finished designing the cupcakes, and therefore, would not be compelled to speak in support of same-sex marriage when it sold those cupcakes to a same-sex couple.

In response to spirited questioning from Justice Elena Kagan, however, counsel for the bakery struggled to articulate the principle that would distinguish the designing and baking of custom wedding cakes, which counsel argued would constitute compelled speech in support of same-sex marriage, from the artistic and expressive efforts of wedding hairstylists, makeup artists, and tailors, whose artistic efforts did not constitute expressive speech, according to counsel.

In discussing the appropriate standard, Justice Sotomayor emphasized the primary function of wedding cake as food, while counsel for the federal government suggested that the purpose be determined as a function of the good’s price tag.

Justice Sotomayor also pointed out that the Colorado law does not require businesses to create expressions with which they disagree; it merely requires them to sell the same expressions generated for other customers to members of protected classes. If a bakery would not sell a “Celebrate gay marriage!” cake to a straight couple, it need not offer it to a same-sex couple.

Again, if a bakery would not sell a rainbow-layered cake to a heterosexual couple, it need not offer it to a gay couple. However, if the bakery offers a white wedding cake—similar to the majority of the wedding cakes displayed on the bakery’s website—to heterosexual couples, it must also offer the same cakes to gay couples. A contrary ruling would enable the seller of any good or services, artistic or otherwise, to claim that the sale, itself, constituted expression by endorsing the beliefs of the buyer.

In a different context, Justice Sotomayor questioned whether a baker who held a sincere religious belief that God created only perfect beings could refuse to sell a cake to a disabled customer. Counsel for the bakery conceded that such a refusal would not implicate the First Amendment because it would be based on who the customer is and not on the message in the cake the baker is being asked to create

Justice Kennedy, who is expected to provide the pivotal fifth vote that decides the case, asked Gen. Noel J. Francisco, the Solicitor General arguing on behalf of the United States, whether in the event the bakery prevailed, other bakeries across the country would be allowed to put signs in their windows stating that they refused to bake cakes for gay weddings, and whether such signs would constitute an affront to the gay community. Gen. Francisco conceded that if the United States’ position prevailed, such signs would be permissible.

Justice Kennedy also challenged the distinction offered by David D. Cole of the ACLU, arguing on behalf of the couple, between refusing to sell a wedding cake because the purchaser is a member of a protected class or identity, and refusing for other reasons that are not based on identity. Justice Kennedy dismissed Mr. Cole’s identity-based distinction as “facile,” and noted that the bakery did not refuse to sell the cake to the couple simply because they are gay, but rather because the bakery’s owners objected to gay people getting married.

The Supreme Court’s ruling will have far-reaching implications for protected classes seeking to purchase goods and services in the stream of commerce without being subjected to the affront of discriminatory exclusion. Although it is impossible to predict how the Court will rule, it is difficult to imagine that Justice Kennedy, who in Obergefell v. Hodges wrote that one state cannot deny a gay couple the “basic dignity” of recognizing their same-sex marriage performed in another state, will allow businesses to deny the dignity of gay couples who seek to celebrate their marriages by allowing those businesses to refuse to provide goods and services on the basis of their religious objections to same-sex marriage. A ruling in favor of Masterpiece Cakeshop would undo decades of progress made through the Civil Rights Era, and as Justice Breyer aptly noted, would “undermine every civil rights law from year 2.”