Masterpiece Cake Shop, Ltd. and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins, U.S. Supreme Court Docket No. 16-111.  Petition for Certiorari granted June 26, 2017.  Petitioners’ Brief and Joint Appendix due August 31, 2017.  Respondents’ merits briefs due October 23, 2017.

In the upcoming term the Supreme Court will review a dramatic clash featuring constitutional promises, the Court’s own precedents, and state civil rights statutes, administrative bodies, and courts.  The Court’s docket frames the question for decision to be whether applying Colorado’s public accommodation law to compel Masterpiece Cake Shop and Phillips to create expression that violates Phillips sincerely held religious believes violates the Free Speech or Free Exercise Clauses of the First Amendment.

What Has Happened So Far?

Craig and Mullins, two potential customers of Masterpiece Cake Shop, Ltd., is owned and operated by Phillips and his spouse, filed administrative charges concerning the Colorado baker for sexual orientation discrimination when Phillips declined, on religious grounds, to create a cake celebrating their same-sex marriage.

The Colorado Commission Against Discrimination agreed with Craig and Mullins and ordered Phillips to create wedding cakes for same-sex marriages, to train his staff to do so, and to report to the state when any order was declined.

The Colorado Court of Appeals found cake creation to be conduct unprotected by the Free Speech clause. Moreover, no Free Exercise violation could e found in requiring compliance with neutral and generally applicable anti-discrimination laws.

The Colorado Supreme Court declined further review, and the petition to the U.S. Supreme Court for certiorari ensued.

What Can Be Expected at the Supreme Court?

Phillips will argue that his custom cakes are art, that artistic creation is speech, and that the state cannot compel speech.  Phillips has asked the Court to review the limits of the speech/conduct dichotomy, in which the former is protected by the First Amendment, while the latter is not.  Phillips underscores the importance of this examination where, he asserts, the federal circuit courts of appeal are in conflict concerning the meaning of “expression.”  Finally, Phillips observes that his Free Exercise Rights are jeopardized where others are not required to produce customer cakes but he faces punishment if he, on the basis of his religious beliefs, will not.

Respondents Craig and Mullins will argue that there should not be any Free Exercise exemption from the antidiscrimination statutes that are both generally applicable and of great social policy import to the country. Moreover, the First Amendment Speech Clause holds no promise of freedom to discriminate.  In fact, they will say, the First Amendment’s speech protections are not in issue at all, as baking a cake is constitutionally unprotected conduct, not speech.

The Colorado Civil Rights Commission, as administrative and adjudicative body concerning the state’s public accommodation law, will argue that these statutes embody the highest of compelling state interests and, as such, are insulated from First Amendment exceptions. Moreover, the state agency will argue, Phillips’ compelled speech argument is not supported within the record.

The civil rights administrative body observes that Phillips refused to create a custom wedding cake was categorical, on the basis of their status, and was made without reference to any “compelled” design features.  Philips’ outright refusal violated the public accommodations law without reference to any process which might involve First Amendment protections.

The conflicts among federal courts that the petitioners perceive are illusory, the Colorado agency asserts, and this is true whether the uniform applicability of anti-discrimination laws or the meaning of “expression” is in issue.

Finally, the state agency argues, the Supreme Court’s precedents concerning compelled speech are not in issue where the record finds that conduct, not expressive speech, is in issue.  Adherence to general non-discrimination laws is distinguishable from any state requirement to profess the any government message.

Is That All?

At its core this case invites the Supreme Court to establish a “pecking order” among the freedoms guaranteed by the First Amendment and those promised by the civil rights laws.  If that seems a tall order, that is because, without a doubt, it is.  Ideally all facets of such significant laws would work together to accommodate the others, but advocacy does not proceed in an ideal world.

It would not be surprising if the case were to command a good bit of the Court’s and the public’s attention.  With respondents’ briefs not due until the third week of October, and with phalanxes of amici anticipated, and with the potential for reply memoranda to be submitted, it may not be until 2018 that oral argument is held, with no opinion to be forthcoming until the end of the term.   This last is but prognostication.  As with all things in the current legal realm, anything is possible.

Certiorari Submissions:

16-111 Cert. Petition Masterpiece Cake _Phillips

16-111-Brief Opposing Certiorari Mullins _Craig

16-111-Brief Opposing Certiorari CCRC

16-111 Cert. Reply Masterpiece Cake _ Phillips

20170512 Letter re. Supplemental Authority









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