A Ruling But Not An Answer
In the days following the release of the Supreme Court’s ruling in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case, the Court’s 7-2 decision in favor of the Colorado baker, Jack Philips, was consistently found in news headlines.
Philips was sued for refusing to make a wedding cake for David Mullins and Charlie Craig in 2012. The Colorado Civil Rights Commission (hereafter “the commission”) ruled that this was discrimination on the basis of sexual orientation, violating Colorado’s anti-discrimination law. Philips appealed the case to the United States Supreme Court, which agreed to consider the question of discrimination, freedom of speech, and freedom of religion. However, despite the court decision’s prominence in the news, very few of these articles considered the lack of the wider implications of this case.
[su_pullquote]The power of the Supreme Court of the United States lies in its ability to set precedent.[/su_pullquote]The power of the Supreme Court of the United States lies in its ability to set precedent. I have followed this case for the better part of a year; I read the Writ of Certiorari, I listened to the oral arguments when they became public, I read through some of the amicus curiae briefs that other lawyers submitted, and when it came out this spring, I read the opinion of the court, written by Anthony Kennedy. This is the document that has the potential to impact my life, and those of so many others. Kennedy’s opinion is the only document with the power to influence future cases; the responses of the other justices are interesting and insightful, but they are not guidelines for lower courts.
In the Writ of Certiorari, Masterpiece Cakeshop asked the court to consider both the freedom of speech and the freedom of religion. The freedom of speech claim comes from the argument that “using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component.” The Court has on many occasions confirmed that non-verbal expression can be considered speech in the context of the First Amendment, but in this case a State Administrative Law Judge held that Philips was not engaging in speech.
Whether or not creating a cake is a means of artistic expression, and thus whether or not speech protections apply to Philips, significantly changes the consequences of this case. If creating a cake is speech, then this case raises the issue of compelled speech. Can the government require you to say something you do not believe? The implications of such a claim go far beyond cakes, or even beyond LGBTQ+-specific rights.
The freedom of religion argument in this case comes in two parts. The first is simply that creating such a cake violates Philips’s religious beliefs and that forcing him to make this wedding cake therefore infringes on his right to practice his religion the way he chooses. When most people refer to this case as addressing the freedom of religion, they are referring to this part of the argument. The second component addresses the way that the case specifically has been handled by the Commission. During arguments before the Commission, Philips’s religious beliefs were met with hostility. In fact, one of the members of the Commission described using religion as a justification as “one of the most despicable pieces of rhetoric” possible.
[su_pullquote align=”right”]This case fundamentally questions which of these protections overrules the other; as Kennedy put it in his opinion, it “presents difficult questions as to the proper reconciliation of [these] principles.”[/su_pullquote]Whether or not the First Amendment guarantees Philips the right to refuse to create a wedding cake for a gay couple, it does guarantee that the American judicial system be neutral towards religion. It is unlawful to discriminate against someone on the basis of their sexual identity, but it is also unlawful, with a few notable exceptions, to hinder an individual’s freedom of religion and speech. This case fundamentally questions which of these protections overrules the other; as Kennedy put it in his opinion, it “presents difficult questions as to the proper reconciliation of [these] principles.”
When the decision was released, I anticipated the opinion to be nuanced, but the actual opinion was far narrower than I was expecting. Kennedy clearly states that the reason for this decision is the final freedom of religion argument; the Commission violated Philips’s constitutional rights under the First Amendment, and so the court ruled in his favor. The outcome of this case is clearly important for Philips, Mullins, and Craig, but I find myself both frustrated and relieved that Kennedy made it so inapplicable to future discrimination cases. Both possible outcomes made me nervous: either we allow businesses to discriminate against LGBTQ+ individuals, or we tolerate compelled speech in the private sector. However, ignoring the issue does not it make it go away. Despite a ruling in this specific case, we are no closer to a constitutional reconciliation of the principle stated above; there is no precedent set by this opinion.
Annie Johnston ‘21 studies in the College of Arts & Sciences. She can be reached at annie.johnst@wustl.edu.