Symposium: Masterpiece Cakeshop and compelled participation in religious ceremonies

Mithun Mansinghani serves as solicitor general for the state of Oklahoma. Michael K. Velchik and Zach West, assistant solicitors general, also contributed to this article. The state of Oklahoma, through Attorney General Mike Hunter, joined a 20-state amicus brief led by the state of Texas in support of the petitioners, a bakery corporation and its owner, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

Gay marriage has been one of the most significant cultural issues of the past several decades. At one time, the majority of voters in many states held the view that legal marriage should only encompass relationships between one man and one woman, and they enacted laws forbidding state recognition of same-sex weddings. In Obergefell v. Hodges, the Supreme Court invalidated those laws, ruling that those who hold the traditional view of marriage cannot codify that belief into law and force those on the other side of the cultural debate to abide by it. Today, most Americans support legal recognition of same-sex marriage. The question in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is whether the logic of Obergefell applies now that the majority view has changed: Can those who support same-sex marriage codify their view into the law and force the new cultural minority to participate in same-sex weddings?

The answer to this constitutional question lies in the First Amendment. Although the parties in Masterpiece Cakeshop focus primarily on the freedom of speech, the freedom of religion is at least equally implicated. The First Amendment’s protection of religious conscience prevents government from forcing individuals to actively participate in religious activities to which they object. The justices in Lee v. Weisman, though divided on many aspects of the case, all agreed that the government “may not coerce anyone to support or participate in religion or its exercise.” Preventing religious coercion is sometimes seen as a function of the establishment clause, but it is also properly within the purview of the free exercise clause. Just as the protection for free speech includes a protection against government-compelled speech, the guarantee of free exercise likewise forbids the government from compelling religious exercise.

This is central to Masterpiece Cakeshop. The state of Colorado has ordered Jack Phillips to design and create wedding cakes for same-sex couples because he does so for heterosexual couples, even though Phillips believes that such participation in same-sex weddings violates his religious belief that weddings are a sacrament between one man and one woman. The question thus arises: Does the First Amendment’s protection from religious coercion shield Phillips from Colorado’s edict?

Weddings have historically been, and generally still are, religious ceremonies. Clergy usually lead the ceremonies, which often begin in houses of worship. Prayers are offered, solemn vows made, spiritual songs sung and verses from holy literature read. The Supreme Court’s decision in Obergefell spoke of the “transcendent importance of marriage” and its significance in “religious and philosophical texts spanning time, cultures, and faiths,” deeming it necessary for “spirituality” and “intimate to the degree of being sacred.” That decision was based in part on Turner v. Safley, which reaffirmed the right to marriage because, among other things, “many religions recognize marriage as having spiritual significance … [and] therefore, the commitment of marriage may be an exercise of religious faith.” Even if a particular wedding celebration leans toward the secular, a religious person like Phillips cannot be faulted for believing weddings are religious exercises.

Wedding cakes play a central role in these celebrations. Religious ceremonies have long revolved around special foods, and weddings in particular feature as their cynosure one particular food: cake. As early as classical Rome, patricians celebrated weddings by consuming a special spelt cake (far) that gave its name to the wedding ceremony (confarreatio). Various forms of “bride-cakes” or “wedding cakes” continued to be used for wedding ceremonies throughout European history. By 1948, the publication Good Housekeeping stated that “[m]any consider a wedding without a cake almost illegal.” Today, entire companies, blogs and experts are devoted to the wedding cake. It is one of the visual cornerstones for marriage, and its ritual cutting plays an iconic role in the wedding celebration. Unlike other goods, wedding cakes are specifically made and exclusively used for matrimonial celebrations. The association of wedding cakes with marriage ceremonies is so ingrained in the modern psyche that couples will often preserve a piece to eat on their one-year anniversary as a reminder of their spiritual union.

Phillips thus reasonably argues that Colorado is forcing him to participate in a religious activity to which he objects by requiring him to craft elaborate, custom wedding cakes to celebrate same-sex unions. If refusal to participate in another’s wedding were not protected by the First Amendment, other participants such as photographers, florists, wedding planners and potentially even officiants would not be sheltered by the Constitution’s prohibition on religious coercion. Neither would the freedom of religion preclude the government from requiring a Jewish band to perform at a Christmas party, a Muslim event planner to coordinate a Wiccan ritual or a baker specializing in communion wafers to bake them for desecration at a Satanic “black Mass.”

Of course, none of this is to say that any purportedly religious objection automatically exempts the objector from all laws to which he objects, including anti-discrimination laws. Phillips himself is happy to create baked goods for gay individuals and couples for non-religious events, such as birthdays or baby showers. He also refuses to create baked goods for other spiritually significant activities that do not align with his own religious beliefs, including Halloween celebrations and polygamist marriages. In short, Phillips does not seek to discriminate based on sexual orientation, but rather only desires freedom from being forced to participate in religious activities with which he disagrees, including same-sex weddings.

This case is thus different from those in which the Supreme Court sustained legal measures aimed at combatting discrimination against African-Americans. Those cases upheld laws prohibiting racial discrimination by private institutions based on the “firm national policy to prohibit racial segregation and discrimination.” Such laws, the court stated, were necessary for the “eradication of racial discrimination” and were thus “essential to accomplish an overriding governmental interest.” Similarly, the court found that “eradicating discrimination against its female citizens” is a compelling state interest, upholding laws that prevent such “acts of invidious discrimination.”

Are the traditional religious beliefs about marriage a scourge upon society similar to that of racism, such that the state is justified by an “overriding governmental interest” in “eradicating” that belief and the individual choices that belief compels?

The Supreme Court in Obergefell did not appear to think so. Rather, they stated that the view of marriage as a “union of man and woman” is held “in good faith by reasonable and sincere people here and throughout the world.” The Obergefell court held that these individuals arrive at their view on marriage “based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged” by the court’s decision. It would require quite a reversal from Obergefell, then, to view the beliefs at issue in Masterpiece Cakeshop as “invidious.”

Rather, the five justices forming Obergefell’s majority “emphasized that religions, and those who adhere to religious doctrines,” may continue to live their lives in conformity with the idea that “same-sex marriage should not be condoned.” “The First Amendment,” the Supreme Court wrote, “ensures that religious organizations and persons are given proper protection.” Such protection from majoritarian institutions is all the more necessary because those who oppose the legal recognition of same-sex marriages are now a distinct minority. Indeed, a premise of the decision in Obergefell is that one side of this religious and philosophical debate cannot require their sincere views to “become[] enacted law and public policy,” because that “put[s] the imprimatur of the State itself on an exclusion” of the other side “that soon demeans or stigmatizes those whose own liberty is then denied.” The same should remain true now that the shoe is on the other foot.

Living in a diverse, pluralistic society is difficult. Obergefell appeared to assure the nation that, when it recognized same-sex marriages, it would also craft a legal framework that would allow our divided country to share a society where each can follow their own conscience. It put forward the promise that one side of the culture war could not use the law as a tool to eliminate the other. This case will test whether that promise holds true.