Etokebe: Not a “piece of cake” decision

On Oct. 2, 2017, the Supreme Court began its 2017-2018 term. To a class of Georgetown University law students, Justice Ruth Bader Ginsburg commented, “There is only one prediction that is entirely safe about the upcoming term, and that is it will be momentous.” During this term, the Court will address key issues such as partisan gerrymandering, cell phone privacy and workers’ rights. A contentious case to watch closely is Masterpiece Cakeshop v. Colorado Civil Rights Commission (2017.) The Supreme Court will be tasked with finding a balance between religious freedom, freedom of expression and equal rights.

In 2012, same-sex couple Charlie Craig and David Mullins attempted to order a wedding cake from Masterpiece Cakeshop in Lakewood, Colorado. Jack Phillips, the owner of the bakery, refused to make a wedding cake for the couple because he believed doing so would go against his religious beliefs. After being denied the shop’s services, the couple filed a complaint with the Colorado Civil Rights Commission (CCRD) under the state’s public accommodations law, the Colorado Anti-Discrimination Act (CADA).

In its appeal, the bakery makes the claim that CADA violates its right to freedom of religion and freedom of speech. The owner contends that the enforcement of CADA would be governmental infringement upon his religious beliefs. Phillips believes that the public accommodations law would compel him to perform actions that would be in direct contradiction with his faith. He argues that the act of creating a cake is a form of expression. In its brief on behalf of Jack Phillips, the Department of Justice wrote, “Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights.”

Jack Phillips’ claim that CADA violates his right to freely practice his religion lacks merit. Although the First Amendment bestows a right to free exercise of religion, this cannot be construed to mean that an individual’s religious beliefs release them from complying with laws that forbid conduct that the state has power to regulate.

While Phillips is entitled to not believe in same-sex marriage, Colorado’s government has a vested interest in discouraging discrimination against certain groups of people. CADA, the law at issue, does not specifically target any religious group or individual’s faith. If businesses wish to conduct business in the state, they must provide services without discrimination.

The strength of Phillips’ freedom of speech claim rests on whether the Court chooses to define the action of designing and selling a wedding cake as “free speech.” Some argue that since Phillips custom makes the wedding cakes, it could be considered artistic expression. Protection for expression is encompassed in the First Amendment right to freedom of speech. If one considers his wedding cakes to be art, it could be argued that the government cannot compel one to speak a particular message that one does not endorse.

Others would argue that act of making a cake is not expression, it is the provision of a service. When Charlie Craig and David Mullins requested a wedding cake from Jack Phillips, they were not requesting the baker to convey a message in support of same-sex marriage. They were asking for the provision of service, a wedding cake to celebrate their marriage. Since Masterpiece Cakeshop is a public accommodation, it has no constitutional right to discriminate and deny services even if the owner may feel that it violates their personal beliefs.

The Supreme Court justices face a difficult decision determining whether the interests of religious freedom and free speech outweigh equal rights protection. If the Court rules in favor of Craig and Mullins, it recognizes that Colorado has interest in promoting equal rights for individuals of all groups. Businesses cannot choose to refuse their services on the basis of sexual orientation. This could be seen as a blow to the right to free exercise of religion and speech to religious activists.

However, the United States government does have checks and balances. If the judicial branch fails to create a constitutional exemption of religious beliefs, the legislative branch can remedy this by granting an exemption. In Employment Division v. Smith (1990) the Court upheld an Oregon statute that denied unemployment benefits to those who smoke illicit drugs such as peyote. This even extended to individuals of the Native American Church that ingested peyote for religious ceremonies. Although the Supreme Court did not create an exemption to protect individuals of the Native American Church, the Oregon state legislature passed legislation which exempted these individuals three years later. Religious businesses could request for their state legislature to make legal accommodations for their religious beliefs. Masterpiece Cakeshop’s owner could seek a legislative exemption. This permit would recognize that forcing Phillips to make cakes for same-sex couples would place a significant burden on his religious beliefs.

Whatever decision the Supreme Court makes, it will not be a “piece of cake.”
Koko Etokebe is a third-year political science student who shares her birthday with Sandra Day O’Connor, the first female U.S. Supreme Court justice.