Masterpiece Bakeshop v. Colorado Civil Rights Commission: Does a Custom Wedding Cake Constitute Freedom of Expression

The facts of the case are simple, at first glance Charlie Craig and David Mullins of Colorado were planning to get married in 2012 in Massachusetts because Colorado did not allow same sex marriages. They entered Masterpiece Cakes of Lakewood, Colorado to order a custom wedding cake. Jack Phillips, the bakery’s owner, said they could buy any baked product they wanted in the bakery. However, he would not bake a custom cake for same sex marriages because of his religious beliefs. Jack Phillips made it clear in one sense that he was not discriminating against gays. He stated that he would sell a cake to anyone, straight or gay, or buys a cake in the store. The couple filed a complaint with the Colorado Civil Rights Commission, which held for them. His response to the Colorado decision was to stop baking custom cakes for anyone. The issue is poised as religious freedom versus anti-discrimination and equality. The issue was created by the 2015 5:4 Supreme Court decision in Obergefell v. Hodges, which ruled unconstitutional bans on same sex marriages. The decision left open the question of the religious beliefs of private parties. The Supreme Court held during the Civil Rights Movement that places of public accommodations, such as hotels and restaurants could not racially discriminate in providing services. The conflict in this case is between the First Amendment and the Fourteenth Amendment. The First Amendment protects Freedom of Speech and Freedom of religion. The 14th Amendment provides equal protection of the law. Freedom of Speech includes Freedom of Expression. Mr. Phillips’ argument is that making a custom cake is an act of artistic expression. A critical of freedom of speech is that the government cannot compel you to speak or “express” yourself. Cases have held Freedom of Expression have included arm bands, art, banners, buttons, commercials films, flag burning, formulas, leaflets, lyrics, photos, religious clothing and religious schools, sit-ins, slogans, and t-shirts. Other aspects of the case are troubling. First, Heidi Hess, a commissioner on the Colorado Civil Rights Commission expressed her antipathy to religion. She stated “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether oit be slavery or the Holocaust.” She also said “And to me, it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.” She expressed a bias against and intolerance for any claim of religious freedom. Secondly, same sex marriages were neither recognized by Colorado or the Supreme Court at the time Mr. Phillips refused to bake the case. In other words, he is being penalized for not baking a cake for a wedding that could not be performed in Colorado at that time. Speech and expression that was lawful at the time should not later be punished. Which will prevail: The First Amendment or the 14th Amendment? Justice Anthony Kennedy will decide