Masterpiece Cakeshop, LTD. v. Colorado Civil Rights Commission

APPLYING PUBLIC ACCOMMODATION LAW

Masterpiece Cakeshop argues that the CCRC’s application of CADA violates its First Amendment rights by restricting their free speech and free exercise of religion. . According to Masterpiece Cakeshop, the Supreme Court has held that states may not apply public accommodation laws, like CADA, when they interfere with free expression. Therefore, Masterpiece Cakeshop contends that this case requires the Court to apply strict scrutiny review—which requires that a government regulation be narrowly tailored to serve a compelling government interest—rather than an ordinary application of public accommodation law. . Masterpiece Cakeshop then asserts that the CCRC’s application of CADA does not survive strict scrutiny review because none of the CCRC’s interests—(1) ensuring equal access to cake artists, (2) preventing adverse economic effects from discrimination, and (3) protecting same-sex couples’ dignity—are compelling. . Masterpiece Cakeshop further argues that the CCRC’s application of CADA is not narrowly tailored because Craig and Mullins were able to access other cake artists. .

Masterpiece Cakeshop also notes that even if the Court does not use strict scrutiny review, the Court should still rule the shop’s decisions as protected by the First Amendment because the shop refused to sell products that “celebrate any form of marriage other than between a husband and a wife” rather than refusing service to homosexuals. Masterpiece Cakeshop asserts it “would be happy to” sell its products to Craig, Mullins, or other homosexuals for events other than same-sex weddings.

The CCRC counters that this case requires the Supreme Court to apply an ordinary, neutral and generally applicable public accommodation law to a business’s sale of goods and services to the public. . The CCRC notes that the Supreme Court has upheld laws, like CADA, that regulate commercial conduct that discriminates on the basis of protected characteristics. The CCRC contends that strict scrutiny review is not applicable in this case. Nonetheless, the CCRC contends, CADA would survive strict scrutiny review because it is narrowly tailored to achieve compelling government interests—preventing discrimination and unequal treatment based on citizens’ protected characteristics.

The CCRC contends that CADA regulates only the conduct of businesses that serve the public by prohibiting the refusal of service based on a customer’s protected characteristics. . CADA, according to the CCRC, is indifferent to the type of product or service that a business offers. . The CCRC asserts that Masterpiece Cakeshop violated CADA not because of what its cakes expressed or did not express, but because Masterpiece Cakeshop refused to serve an entire class of people merely because of their protected characteristics. According to the CCRC, Masterpiece Cakeshop would sell wedding cakes to heterosexual couples but not to homosexual couples.

CUSTOM-MADE CAKES AND CREATIVE EXPRESSION

Masterpiece Cakeshop argues that the CCRC’s application of CADA violates its Free Speech rights, which protect its expression and expressive conduct. . Masterpiece Cakeshop contends that the category of “protected artistic expression” encompasses its custom wedding cakes because these specialty cakes are used to communicate specific messages. . According to Masterpiece Cakeshop, the cakes declare that the wedding “should be celebrated”—a message that Masterpiece Cakeshop “could not in good conscience communicate.” . Alternatively, Masterpiece Cakeshop asserts that even if creating custom wedding cakes is not itself artistic expression, it is at least “expressive conduct” meriting protection. . According to Masterpiece Cakeshop, creating custom wedding cakes satisfies the expressive conduct test because a viewer would recognize that Masterpiece Cakeshop’s custom wedding cakes “celebrate[] and express[] support for” same-sex marriages. .

Next, Masterpiece Cakeshop argues that the CCRC violates the compelled-speech doctrine, which protects an artist’s discretion in expressing or not expressing a particular idea by forcing him to convey an idea he finds objectionable through his art. . Masterpiece Cakeshop contends that the CCRC unconstitutionally regulated Masterpiece Cakeshop’s artistic expression by “mandat[ing] orthodoxy of expression, not anti-discrimination.” .

Finally, Masterpiece Cakeshop asserts that the CCRC’s application of CADA engages in impermissible content-based and viewpoint-based discrimination by forcing Masterpiece Cakeshop to engage in expression it otherwise would not engage in as well as by forcing Masterpiece Cakeshop to convey endorsement of same-sex marriages—a viewpoint at odds with its fundamental beliefs. Thus, Masterpiece Cakeshop argues that because the CCRC’s application of CADA violates its Free Speech rights, the Supreme Court must apply strict scrutiny review. . Masterpiece Cakeshop contends that CADA fails strict scrutiny.

The CCRC counters that whether Masterpiece Cakeshop’s cakes constitute speech is immaterial in this case because CADA regulates only non-expressive conduct by prohibiting discrimination in the commercial marketplace. The CCRC notes that the Supreme Court has invalidated applications of public accommodation laws for violating the First Amendment in only two cases. Both cases, the CCRC contends, dealt with private associations rather than commercial businesses offering goods and services to the public at large. The CCRC asserts that the prohibition against discrimination affects Masterpiece Cakeshop’s expression only incidentally. Thus, according to the CCRC, the Supreme Court will apply the deferential review standard set forth in United States v. O’Brien, which the Court has routinely used to uphold regulations. The CCRC argues that CADA’s prohibition of discrimination satisfies the O’Brien review standard because it regulates conduct irrespective of what it expresses and because it is “within the constitutional power of the Government.”

The CCRC contends that the application of CADA does not implicate the compelled speech doctrine because CADA regulates conduct and its effect on speech is merely incidental. The CCRC notes that CADA’s regulation of discrimination only slightly affects Masterpiece Cakeshop’s ability to freely express itself, which the Supreme Court has noted is permissible in previous Free Speech cases.

The CCRC asserts that CADA does not regulate the content of viewpoints of Masterpiece Cakeshop’s speech. Indeed, according to the CCRC, CADA does not exclusively apply to certain “topics” of expression, but rather it applies to refusing service to customers based on their protected personal characteristics. Additionally, the CCRC notes that CADA applies equally and neutrally to any discrimination on the basis of protected characteristics, independent of the identity and beliefs of the commercial business.

FREE EXERCISE AND HYBRID RIGHTS

Masterpiece Cakeshop argues that the CCRC’s application of CADA violates its Free Exercise rights, which protect its ability to freely practice religion. . Masterpiece Cakeshop contends that making a custom wedding cake and participating in same-sex marriages, which retain a “deep[ly] religious meaning” to Masterpiece Cakeshop, burden its religious beliefs and practices. According to Masterpiece Cakeshop, CADA is neither neutral nor generally applicable because it protects supporters of same-sex marriage and punishes opponents. . Masterpiece Cakeshop asserts that the CCRC would permit cake artists to refuse an order requesting an offensive or disparaging cake, but would not permit Masterpiece Cakeshop and similarly situated cake artists to refuse an order requesting a cake endorsing same-sex marriage. . This differential treatment, Masterpiece Cakeshop argues, not only unconstitutionally disfavors Masterpiece Cakeshop’s religious beliefs and practice, but also allows the government to decide what is and what is not offensive.

Furthermore, Masterpiece Cakeshop contends that the CCRC violated the general applicability requirement because the CCRC’s application of CADA is both selective and underinclusive. . According to Masterpiece Cakeshop, CADA is underinclusive because it does not prevent dignitary harm to citizens, but rather inflicts dignitary harm on religious artists like Jack Phillips. . Masterpiece Cakeshop asserts that the CCRC selectively applied CADA by targeting artists who religiously object to same-sex marriages while protecting those who do not object. . For those reasons, Masterpiece Cakeshop argues that the application of CADA violates the Free Exercise Clause and triggers strict scrutiny review, which this application of CADA does not satisfy. .

Finally, in the alternative, Masterpiece Cakeshop asserts that the CCRC’s application of CADA infringed upon both its Free Speech interest in artistic expression and its free exercise interest in freely practicing religion. . Masterpiece Cakeshop contends that this “hybrid” connection of Free Exercise and Free Speech rights triggers strict scrutiny review, even if either independent claim does not alone trigger strict scrutiny review.

The CCRC counters that Masterpiece Cakeshop’s Free Exercise rights do not exempt it from complying with CADA—a “valid and neutral law of general applicability.” . According to the CCRC, Colorado may constitutionally prohibit discrimination in public accommodation and Jack Phillips’s religious beliefs, deeply held or otherwise, do not except Masterpiece Cakeshop from anti-discrimination laws such as CADA. . The CCRC asserts that CADA is both neutral facially and as applied to Masterpiece Cakeshop, for CADA targets no religion and applies to a commercial business’s conduct regardless of the owner’s religious beliefs or the business’s goods and services. .

The CCRC argues that Masterpiece Cakeshop seeks preferential treatment rather than equal treatment by asking the Supreme Court to grant it a “constitutional[ly] anamal[ous]” “private right to ignore” CADA’s prohibition against discrimination.. The CCRC contends that the Free Exercise Clause does not entitle Masterpiece Cakeshop to that right.

The CCRC asserts that Masterpiece Cakeshop’s hybrid rights claim fails because neither the Free Speech nor the Free Exercise claim insulates Masterpiece Cakeshop from its obligation to follow a public accommodation anti-discrimination law. . The CCRC further argues that the Supreme Court has never applied a special analysis to hybrid situations and that accepting Masterpiece Cakeshop’s hybrid rights claim would contradict the Supreme Court’s precedent in Free Exercise jurisprudence. .