About this Blog Series

Welcome to the second in an 8-part series titled Frosting on the Cakes: Non-Discrimination Laws, First Amendment in the Mix at Supreme Court (Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111). Through the summer, we will be joined by guest author Chad M. Eggspuehler to dig into the dynamics of this case, what you need to know to follow it through the process, and why it is so important. Chad is a member of the Tucker Ellis Appellate & Legal Issues Group. Before joining Tucker Ellis, he clerked for federal trial and appellate judges in New Jersey and Ohio, including the Honorable Deborah L. Cook, Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit. All views expressed here are those of the author. Chad can be reached at chad.eggspuehler@tuckerellis.com.

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“The material facts are not in dispute.” So states the petition for certiorari granted by the Supreme Court, and the decisions of the Colorado appeals court and Colorado Civil Rights Commission (CCRC) likewise agreed on the relevant facts. It makes sense that a Supreme Court case would not involve weighty factual disputes, in that the Supreme Court—like many American courts of last resort—primarily decides issues of law while deferring on questions of fact to fact-finding forums like trial courts and administrative agencies. And yet, there is a tendency with emotionally charged civil rights cases to stretch facts to bolster an argument.

Here’s what you need to know. The administrative decision adopted by the CCRC lays out sixteen undisputed facts. (See CCRC Findings of Fact, Op. at 2, here) These are the highlights:

• The Bakery: Jack Phillips operates Masterpiece Cakeshop, Inc. (“Masterpiece”), a bakery that makes a variety of specialty cakes, including wedding cakes, in Lakewood, Colorado. The bakery qualifies as a “place of public accommodation” under Colo. Rev. Stat. § 24-34-601(1). (Facts 1–3.)
• The Denial of Service: On July 19, 2012, Charlie Craig and David Mullins entered Masterpiece and requested a cake for their upcoming wedding in another state. Phillips declined their request, telling them that, though he would make and sell other baked goods to them, “I just don’t make cakes for same-sex weddings.” No discussion of cake design took place. Phillips denied the order a second time in a phone call with Mr. Craig’s mother, explaining that “he does not create wedding cakes for same-sex weddings because of his religious beliefs, and because Colorado [did not at that time] recognize same-sex marriages.” (Facts 4–9.)
• Phillips’s Religious Beliefs: Phillips believes in the Biblical account of marriage as the union of one man and one woman. In his view, the Bible “commands him to avoid doing anything that would displease God, and not to encourage sin in any way.” He believes that his work “is a form of art and creative expression . . . that . . . can honor God,” and that creating a cake for a same-sex wedding would be “displeasing” to God and contrary to the Bible. (Facts 11–16.)

It makes sense that a Supreme Court case would not involve weighty factual disputes, in that the Supreme Court—like many American courts of last resort—primarily decides issues of law while deferring on questions of fact to fact-finding forums like trial courts and administrative agencies. And yet, there is a tendency with emotionally charged civil rights cases to stretch facts to bolster an argument.

The CCRC found that Mr. Phillips and his business violated the Colorado Anti-Discrimination Act (CADA) and ordered them to cease and desist from discriminating against same-sex couples. It also required quarterly compliance reports and remedial measures such as staff training on CADA’s requirement of equal access to public accommodations.

Note, this case does not involve a request for a merchant to participate—in the form of physical presence—in a wedding ceremony or reception of which he disapproves. Whatever the inherent symbolism of a wedding cake may be, there is nothing in the record indicating that, in addition to the future delivery of a cake product, a Masterpiece representative would attend the wedding or reception.

Nor does this case implicate a request to place an explicit message—political or otherwise—on the cake, whether in frosting, decorations, or other mediums. Cf. Wooley v. Maynard, 430 U.S. 705 (1977) (striking down New Hampshire law requiring that state motto, “Live Free or Die,” appear on motorists’ license plates). Indeed, Mr. Phillips denied service before any discussion of cake design took place.

Masterpiece has argued that the CCRC has applied CADA in a discriminatory manner against Mr. Phillips and others because of their Christian faith, pointing to three other administrative cases involving the denial of cake orders supporting a Christian message. Not so. Those cases arose from a Christian customer’s attempt to purchase Bible-shaped cakes bearing overt messages against same-sex marriage from three Denver bakeries in the aftermath of the CADA charges against Masterpiece.

Masterpiece has argued that the CCRC has applied CADA in a discriminatory manner against Mr. Phillips and others because of their Christian faith, pointing to three other administrative cases involving the denial of cake orders supporting a Christian message. Not so.

The customer requested that the cakes include the image of two grooms crossed-out by a red, Ghostbusters-style sign, as well as Bible verses with the message “Homosexuality is a detestable sin.” The Colorado Civil Rights Division (CCRD)—the prosecutorial agency for CADA violations—declined to pursue charges, finding no status-based discrimination on the basis of religion in the bakeries’ decisions not to include overt messages they deemed offensive on cakes. (See CCRD Decisions in Other Bakery Cases, here, here, and here.)

The relevance of the other bakery cases to Masterpiece’s as-applied First Amendment challenge to Colorado’s anti-discrimination law is unclear, in that those decisions had no bearing on how the CCRC decided this case. Those cases are not before the Supreme Court. And to the extent Petitioners argue that they show viewpoint discrimination by Colorado’s civil rights agencies, they overreach. Those cases involved an order for an explicit cake message resulting in the denial of service; this case did not. Masterpiece has argued to the contrary, claiming that the wedding couple ultimately bought a cake that contained a rainbow-colored filling. That claim, however, has no basis in the administrative record and, more importantly, it is irrelevant because it did not factor into the denial of service in this case. The parties agree that Mr. Phillips denied service before any discussion of cake design took place.

One other fact bears mention. Contrary to the views of some commentators (see article here), this is a case of status-based discrimination—at least as a matter of Colorado law. The conduct/status distinction is a recurring theme in civil liberty and public accommodation disputes, because many antidiscrimination legal protections prohibit only status-based discrimination.

Factual allegations damaging to Masterpiece, however, can be found in the administrative record. For instance, the CCRD’s charging document, a probable cause order, recounts the stories of three other same-sex couples’ inability to obtain cupcakes and cakes for their commitment ceremonies. One couple stated that Mr. Phillips compared the act of making a cake for their commitment ceremony to making “a pedophile cake.” Another was told by a Masterpiece representative that they “were doing something ‘illegal’” in planning a commitment ceremony. Yet, in an anonymous phone call with the third couple, Mr. Phillips had no objection to their proposal for a wedding cake for two dogs. (See Probable Cause Order at 3, here.) Though these accounts appear to have been submitted in sworn affidavits, the CCRC did not make any factual findings as to these allegations. It thus seems unlikely that they will have much impact at the Supreme Court.

One other fact bears mention. Contrary to the views of some commentators (see article here), this is a case of status-based discrimination—at least as a matter of Colorado law. The conduct/status distinction is a recurring theme in civil liberty and public accommodation disputes, because many antidiscrimination legal protections prohibit only status-based discrimination. Masterpiece previously defended its denial of service as a non-discriminatory objection to conduct (a same-sex wedding). It lost that argument before the CCRC and the Colorado Court of Appeals, both of which determined that Mr. Phillips’s refusal of service constituted discrimination on account of sexual orientation in violation of CADA. Whether one agrees with those decisions or not, that is the authoritative interpretation of Colorado law applicable to this case, and the Supreme Court has not been asked to review that decision. (Nor would it under traditional Erie doctrine principles; the state supreme court is the final authority on a matter of state law.) Rather, the Supreme Court will consider whether the application of Colorado’s antidiscrimination law to Masterpiece and Mr. Phillips violated the First Amendment’s free speech and free exercise protections.

To be sure, this case has a few layers and some external flourishes that will grab headlines. But the core facts before the Supreme Court are more vanilla than one might expect. The legal arguments—next on the menu for this series—are anything but.

Chad M. Eggspuehler is a member of the Tucker Ellis Appellate & Legal Issues Group. Before joining Tucker Ellis, he clerked for federal trial and appellate judges in New Jersey and Ohio, including the Honorable Deborah L. Cook, Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit. All views expressed here are those of the author. Chad can be reached at chad.eggspuehler@tuckerellis.com.