Editor’s Note 9/8/2017: On Thursday, September 7, the Department of Justice (DOJ) filed a brief siding with Colorado baker Jack Phillips in the case Masterpiece Cakeshop v. Colorado Civil Rights Commission. While the case will ultimately be decided in the Supreme Court, the DOJ brief indicates the Trump administration’s stance on how personal religious freedom and freedom of expression, protected under the First Amendment, stack up against states’ anti-discrimination laws.
In 2012, baker Jack Phillips refused to create a wedding cake for gay couple Charlie Craig and David Mullins, writing in the Denver Post in July 2016 that doing so would be at odds with his religious beliefs. Craig and Mullins brought their case to the Colorado Civil Rights Commission, a government board within the Colorado Civil Rights Division that conducts hearings regarding illegal discriminatory practices. The Commission found that under the state’s Anti-Discrimination Act, it is illegal for Phillips to refuse service to customers based on their sexual orientation.
Phillips appealed the decision. He’s not just a baker providing cakes, he said, but an artist expressing himself through his craft. He believes that expression is protected under the First Amendment, which supersedes Colorado’s anti-discrimination law.
Again in 2015, the appeals court ruled in favor of the couple. Phillips appealed the case up to the federal Supreme Court, which, for a year, held the case without hearing it. But as similar lawsuits continue to pop up around the country—and all nine court seats full—University of Colorado Law School professor Melissa Hart says the issue warrants resolution “at the highest level.”
Hart says it’s difficult to know which direction the Supreme Court will sway. But, a ruling in favor of Phillips, she says, would contradict existing case law.
“The Supreme Court has said, in a decision authored by Justice Scalia [Smith v. Employment Division, 1991], that a neutral state law that applies to everyone, applies to everyone,” says Hart. “People aren’t entitled to exceptions for religious purposes. Our state anti-discrimination law was not designed to target religion…so it’s allowed to burden religions. Religions don’t get special exemption.”
While LGBTQ rights have been at the forefront of the national discussion between civil rights protections and religious freedom and freedom of expression, the ruling of this case could have implications well beyond the LGBTQ community.
“If I can say it’s against my religious beliefs to serve two men who are getting married, can I also say it’s against my religious beliefs to rent an apartment to an unmarried single mom?” Hart says. “It really does potentially have broader implications and as people think about where those lines should be drawn, it’s important to keep that in mind.”