Masterpiece Cakeshop Inc. and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins

Summer 2016

By William E. Trachman

On April 25, 2016, the Colorado Supreme Court declined to hear the appeal of a bakery and its owner who had challenged a finding by the State’s Civil Rights Commission (the Commission).1  The suit argued that the Commission’s view of the coverage of the Colorado Anti-Discrimination Act (CADA), was impermissibly broad, and also violated state and federal law.  An appellate court had previously affirmed the holding of the Commission.

The Colorado Supreme Court’s Order denying a writ of certiorari may end the legal dispute surrounding the refusal of a bakery to make a cake for a same-sex wedding ceremony.  On the other hand, the public debate about public accommodations laws—which purport to protect customers from discrimination on the basis of sex, religion, and sexual orientation, among other protected statuses—will continue long beyond the Colorado Supreme Court’s Order.

II. Factual Background And Legal Result

In 2012, a same-sex couple requested that a bakery called Masterpiece Cakeshop (Masterpiece or Mr. Phillips) sell them a wedding cake for their wedding ceremony.2  The owner of the bakery, Jack Phillips, is a religious Christian, and denied the request to bake the cake for the couple.

The same-sex couple filed a complaint with the Colorado Civil Rights Division (the Division), alleging that the bakery’s denial amounted to sexual-orientation discrimination.  The complaint was based on Col. Rev. Stats. § 24-34-601, which provides that:

It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or, directly or indirectly.

Col. Rev. Stats. § 24-34-601(2)(a) (emphasis added).  There were no disputes over the underlying facts of the case, and Mr. Phillips did not contest the bakery’s status as “a place of public accommodation.”

An administrative law judge for the Division issued an order holding that Masterpiece and Mr. Phillips had violated CADA by discriminating against the same-sex couple on the basis of their sexual orientation.  The Commission affirmed the administrative law judge’s opinion

As part of the punishment for violating CADA, the Commission ordered Mr. Phillips and Masterpiece’s staff to attend sensitivity training about CADA’s requirements, and on the topic of discrimination generally.  Additionally, the Commission ordered that Masterpiece provide updates for two years regarding any other customers whose requests for cakes were rejected, and the reasons for such rejections.

Phillips and Masterpiece appealed the Commission’s final ruling and punishment.3  After the appellate court affirmed the Commission’s rulings, Phillips and Masterpiece appealed to the Colorado Supreme Court.

Four Justices of the Colorado Supreme Court voted against a writ of certiorari, meaning that the Colorado Supreme Court will not hear the case. On the other hand, two justices would have granted a writ of certiorari on several questions:

Whether the Colorado Anti-Discrimination Act (“CADA”) requires Phillips to create artistic expression that contravenes his religious beliefs about marriage.

Whether applying CADA to force Phillips to create artistic expression that contravenes his religious beliefs about marriage violates his free speech rights under the United States and Colorado Constitutions.

Whether applying CADA to force Phillips to create artistic expression that violates his religious beliefs about marriage infringes his free exercise rights under the United States and Colorado Constitutions.

A third Justice—Justice Allison Eid—did not participate in the case.  Since the result, lawyers for Masterpiece and Mr. Phillips have stated that they are “evaluating all legal options.”4

II. Is it Discrimination On The Basis Of Sexual Orientation?

Before the Division and the appellate court, Mr. Phillips argued that the refusal to bake a wedding cake was not related to the complaining couple’s sexual orientation.  Instead, Mr. Phillips claimed, he objected only to the conduct of engaging in a same-sex wedding ceremony.

Indeed, Mr. Phillips made the point that he welcomes LGBT customers to purchase his baked goods; his only objection is to participating in a wedding between two individuals of the same sex.  Before the appellate court, he cited to at least one instance in New Zealand where two straight individuals held a same-sex wedding ceremony as part of a radio show contest.  He argued that he would have a similar objection to baking a cake for this type of ceremony.

This argument was not successful.5  The court ruled that same-sex weddings are predominantly undertaken by LGBT individuals. As a result, discriminating against the “conduct” of a same-sex wedding was in fact discrimination on the basis of sexual orientation.6  The U.S. Supreme Court has previously implied as much in its recent decision on the right to gay marriage, Obergefell.7

And for the most part, courts will hold that discrimination against activities that are largely undertaken by a class of protected persons—wearing yarmulkes for Jews, for instance—is discrimination against those persons themselves.8  While the line between activity and identity is not always clear, the appellate court in the Phillips matter did not seriously consider the possibility that discrimination against same-sex weddings is anything other than discrimination against LGBT individuals.

III. Does A Broad Interpretation Of CADA Violate Free Speech Or Free Exercise Rights?

Even if CADA applied to Mr. Phillips’ refusal to bake a wedding cake, however, the appellate court still had to analyze whether CADA’s mandate was constitutional under both the Colorado and federal constitutions.  The most promising objection for Mr. Phillips in this regard was to the First Amendment right to free speech and expression.

The appellate court, however, rejected the argument.  It first held that baking a wedding cake was not sufficiently expressive to be protected by the First Amendment.  Nor, held the court, was Mr. Phillips’ act of baking a wedding cake likely to be misunderstood as an endorsement of same-sex marriage.  It noted that “it is unlikely that the public would understand Masterpiece’s sale of wedding cakes to same-sex couples as endorsing a celebratory message about same-sex marriage.”9  Without these predicate findings, the appellate court rejected an argument based on the Free Speech clause of the First Amendment.

The appellate court did suggest that Mr. Phillips could legally post a notice in his window that cakes for same-sex weddings were only being provided as a result of compulsion by the state, and not because of any personal support for same-sex marriage.10  In that way, Mr. Phillips could theoretically undermine any confusion that he thought the public might perceive from his act of baking same-sex wedding cakes.

Separately, the appellate court rejected the Free Exercise arguments presented by Mr. Phillips and Masterpiece.  These arguments were largely precluded by the U.S. Supreme Court’s decision in Employment Division v. Smith,11 which rejected a First Amendment challenge to a generally applicable neutral law.  The appellate court also held that the Colorado Constitution did not go further than the First Amendment in protecting the Free Exercise of religion, as some other state constitutions do.  And notably, Colorado has not enacted a statute similar to the federal Religious Freedom Restoration Act, or “mini-RFRA,” that might have provided a further argument for Mr. Phillips.

Because Mr. Phillips’ constitutional challenges to the broad coverage of CADA were rejected by the appellate court, the Commission’s findings and the punishment it issued were upheld.  And because the Colorado Supreme Court has declined to hear the matter, the Commission’s holdings will likely stand, absent further action by the U.S. Supreme Court.

IV. How Should Colorado Law Be Enforced?

Under the broad reading of CADA announced by the Colorado Civil Rights Commission and the appellate court, some cases will be easier than others.  A flat out denial of services or goods—as was the case with Mr. Phillips and Masterpiece—marks the far end of one spectrum.

On the other end, however, are those cases where a same-sex couple brings a complaint because they do not end up liking the flavor of the cake, and suspect deliberate sabotage by the baker; or if wedding guests become sick after eating the cake; or any other complaint that a baker denied the couple “the full and equal enjoyment of the goods offered by the bakery.”  And, as we have seen recently, not all complaints that involve the baking of cakes are made in good faith.12

Additionally, the ruling may increase the cost of doing business for religious Christian bakeries.  Notably, the appellate court recognized that baking a cake is not simply a rote task performed by a baker, but instead one that requires the baker to use “skill and artistry.”13  To the extent a baker cannot force himself to use his skill and artistry to bake a perfect wedding cake, the baker may be forced to retain an outside vendor, hire a new employee, or face expense of an administrative complaint and lawsuit.

V. The Other Side Of The Coin: Religious Cake Discrimination

Of course, CADA doesn’t just protect individuals from discrimination on the basis of sexual orientation.  It also protects customers from religious discrimination.  One citizen sought to make a point by filing a complaint on the flip side of the Masterpiece case.

William Jack ordered several Bible-shaped cakes from the Azucar Bakery in Denver, Colorado.  Some of the cakes were ordered with scripture that would be written out in icing.  The scripture verses were:

  • God hates sin. Psalm 45:7.
  • Homosexuality is a detestable sin. Leviticus 18:2.
  • While we were yet sinners Christ died for us. Romans 5:8.

Additionally, the cake order included a picture of two groomsmen with an “X” over them, and the phrase “God loves sinners.”  Azucar bakery refused to make the cakes, and Mr. Jack filed a complaint with the Division.

This time, however, the Division rejected the claim under CADA, holding on March 25, 2015, that the refusal to make the cakes was not discrimination under the statute.14  Instead, the Division held that Azucar could legally refuse to bake the cakes because they were offensive; it held, moreover, that Azucar did not engage in religious discrimination since it baked religious and Christian-themed cakes for many other occasions.

These findings are arguably in tension with the rulings in the Masterpiece case.  Mr. Phillips possibly considered a same-sex ceremony “offensive.”  And Mr. Phillips’ losing argument that he served LGBT customers without incident mirrors Azucar’s argument that it serves Christian-themed cakes for other occasions.  Last, the argument that discrimination against same-sex ceremonies largely affects only LGBT individuals would seemingly apply to the Azucar case:  the vast majority of individuals who would like Biblical verses on their cakes are likely religious.

Mr. Jack never appealed the Division’s decision regarding his complaint to the Colorado courts, however, so any tension between the Masterpiece and Azucar Bakery cases stands for now.

William E. Trachman is an employment law attorney in the Denver office of Littler Mendelson.  He is also an adjunct professor of law at the University of Denver, Sturm College of law.  The views set forth herein are the personal views of the author.


1 The Colorado Supreme Court’s decision is available here.

2 At the time, the Colorado Constitution precluded the state from legally recognizing same-sex marriages. See Colo. Const. Art. II, Section 31.  That provision is no longer valid in light of the U.S. Supreme Court’s decision in Obergefell v. Hodges, 576 U.S. __ (2015).

3 Mullins v. Masterpiece Cakeshop, Inc., 2015 COA 115 (2015).

4 See Colorado Supreme Court declines to hear gay wedding cake case, Washington Times, April 25, 2016 (available here).

5 See Mullins v. Masterpiece Cakeshop, Inc., 2015 COA 115, ¶ 25 (2015) (“We conclude that the act of same-sex marriage is closely correlated to Craig’s and Mullins’ sexual orientation, and therefore, the ALJ did not err when he found that Masterpiece’s refusal to create a wedding cake for Craig and Mullins was ‘because of’ their sexual orientation, in violation of CADA.”)

6 Id. at ¶ 34 (“But for their sexual orientation, Craig and Mullins would not have sought to enter into a same-sex marriage, and but for their intent to do so, Masterpiece would not have denied them its services.”).

7 Id. at ¶ 33 (citing Obergefell v. Hodges, 576 U.S. __ (2015).

8 Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 270 (“Some activities may be such an irrational object of disfavor that, if they are targeted, and if they also happen to be engaged in exclusively or predominantly by a particular class of people, an intent to disfavor that class can readily be presumed. A tax on wearing yarmulkes is a tax on Jews.”).

9 Mullins, 2015 COA at ¶ 68.  For an argument to the contrary with respect to photographers who object to performing services at same-sex marriages, see this amicus brief filed by Professor Eugene Volokh and the Cato Institute.  See here.

10 Mullins, 2015 COA at ¶ 72 (“CADA does not prevent Masterpiece from posting a disclaimer in the store or on the Internet indicating that the provision of its services does not constitute an endorsement or approval of conduct protected by CADA.”).

11 Employment Div. v. Smith, 494 U.S. 872, 877 (1990).

12 See Pastor to drop lawsuit against Whole Foods over anti-gay slur on cake, Austin American-Statesman, May 16, 2016 (available here).

13 Id. at ¶ 58 (describing ALJ’s decision that “baking and creating a wedding cake involves skill and artistry”).

14 A copy of the ruling is available here.

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