Symposium: Disentangling free speech and freedom of religion in Masterpiece Cakeshop

Eric Segall is the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law.

Jack Phillips, the co-owner of Masterpiece Cakeshop, refused to sell a wedding cake to a same-sex couple because supporting their wedding violated his religious beliefs. The couple filed suit in Colorado state court, arguing that a Colorado civil-rights law required Phillips to provide his services to all customers regardless of their sexual orientation. Phillips responded that the free speech and free exercise clauses of the First Amendment to the United States Constitution prohibit Colorado from enforcing its civil-rights law against him under these circumstances. He argued that he is a wedding-cake artist, and that the state can’t force him to express a message (support of same-sex weddings) that he does not want to communicate because of his religious conscience.

The Supreme Court held in Employment Division v. Smith that the free exercise clause of the First Amendment is not violated by generally applicable laws not specifically directed at religion even if those laws substantially burden the ability of people to exercise their religion. Phillips does not argue, and could not argue, that Colorado’s anti-discrimination law was passed with the intent to burden religious practices. Furthermore, unlike many states, Colorado does not have a Religious Freedom Restoration Act that might provide statutory redress to people who believe that neutral laws substantially burden their religious exercise.

The Supreme Court has also held, however, that even a religiously neutral law can violate the free exercise clause if the real object of the law is to disfavor religion or if the law as implemented by the state discriminates against religion. This case, Phillips contends, falls into the latter category, because the Colorado Civil Rights Commission allowed other bakers to refuse to sell cakes to customers who wanted anti-same-sex-wedding messages on their cakes. Although the commission held that the other bakers’ refusals were based on the offensiveness of the message, not the identity of the customers, Phillips argues that the commission applied its civil rights law on a religiously discriminatory basis. According to Phillips, the state has “selectively applied” the civil rights law to “artistic and expressive professionals who have religious objections to same-sex marriage,” while allowing other expressive professionals to refuse customers who want to express anti-same-sex-marriage messages.

The Supreme Court should rule against Phillips on his free-exercise-of-religion claims because the commission’s actions were not directed at his religious beliefs or practices but rather at his refusal to sell his commercial product to customers based, in the commission’s view, on the customers’ sexual orientation. Even if the commission is preferring some messages (pro-same-sex marriage) over other messages (anti-same-sex marriage), in a way that might violate the free speech clause of the First Amendment, such disparate treatment does not convert Colorado’s religiously neutral civil-rights law into a law that unconstitutionally burdens the free exercise of religion or one that discriminates against Phillips because of his religion.

The commission would have applied its law to any “artistic professional” who rejected the business of a same-sex couple because of objections to same-sex marriage, regardless of whether those objections were religiously based. Similarly, the commission allowed “artistic professionals” to refuse customers who wished to express what the commission agreed were “offensive” anti-same-sex-wedding messages, regardless of the religious or non-religious nature of those messages. The commission’s distinction is between offensive and non-offensive messages, not between religious and non-religious messages. That distinction might raise free-speech concerns, but it has nothing to do with religion.

There are important reasons the Supreme Court should carefully distinguish between Phillips’ speech and religion claims. Non-discrimination laws promote compelling governmental interests in fighting inequality and unlawful discrimination. Colorado and numerous other states have made it illegal for businesses to refuse to provide their services to potential customers based on race, gender, national origin and, in Colorado’s case, sexual orientation. It wasn’t that long ago that Americans who ran businesses and schools used their religious beliefs to justify discriminating against African-Americans. Discrimination in the provision of secular services based on religious belief is still discrimination, and does not deserve constitutional protection.

Phillips’ free-speech claims, however, raise wholly different issues and concerns. He alleges that the custom cakes he makes for weddings are expressive, and that the government cannot force him to adopt a government-required message. It seems clear that a pro-life baker could not be forced by the state to provide a cake for a Planned Parenthood office party with the inscription “Pro-Choice.” Whether Phillips’ wedding cakes are communicative enough to warrant similar protection, or whether Colorado’s interest in fighting discrimination against gays and lesbians is compelling enough to override that protection, are difficult questions, but they relate exclusively to free speech, not religion.

Phillips also relies on largely discredited dicta in Smith pertaining to the so-called “hybrid-rights” doctrine to bolster his free-exercise claim. He argues that his speech/religion claims are entitled to strict scrutiny (the most rigorous test in constitutional law), because his free-exercise claim is linked to his arguments about forced expression.

Phillips’ attempt to bolster his religion claims by linking them to “communicative activity” fails for several reasons. As Phillips concedes, the Colorado Court of Appeals expressed doubts about the “validity” of the hybrid- rights doctrine, and the Supreme Court has never offered a blueprint for how the doctrine should be implemented. Many scholars have suggested that the hybrid-rights doctrine should be limited to the facts of Smith or abandoned altogether. The hybrid-rights theory has also created much confusion in the lower courts, which have reached different conclusions about how and even whether to apply it. The court should use this case to discard this highly criticized and dubious doctrine.

Phillips’ forced-expression claims add nothing to his claims of religious discrimination. The Colorado Civil Rights Commission did not care about Phillips’ religion, nor did it make a decision based on his religion. Just like all other wedding-cake bakers, Phillips may exercise his religion any way he wants to other than refusing to serve customers based on their sexual orientation. The free exercise clause has nothing to say about Colorado’s religiously neutral desire to prohibit sexual-orientation discrimination by Colorado sellers of commercial products. The fact that, quite apart from his religion claims, Phillips may also have viable free speech claims does not imbue his religion claims with merit.

Phillips did not want to endorse same-sex marriage by selling a wedding cake to a same-sex couple. The reason or motivation for his refusal – that providing the cake violated his faith – is irrelevant to the constitutional merits of his free-speech claims. If Phillips has a federal constitutional right to refuse to sell his wares under these facts, so would anyone else who objects to same-sex marriage, for any reason, faith-based or not. If Phillips doesn’t have that right, adding faith to the equation does not supply it. Perhaps that is why the Trump administration, as well as the Cato Institute, both of which filed amicus briefs in support of Phillips, did not endorse his free-exercise claims. In short, as a legal matter, religion has nothing to do with this case. The Supreme Court should resolve it solely on the basis of freedom of speech.