[guest post by Dana]

Not on today’s order list, but a case that has drawn a lot of attention from all sides is Masterpiece Cakeshop v. Colorado Civil Rights Commission. This case involves a Colorado bakery owner and cake artist whose religious beliefs precluded him from providing a custom wedding cake for the same-sex marriage of David Mullins and Charlie Craig. Today the court agreed to hear an appeal from the baker:

The Supreme Court agreed on Monday to hear an appeal from a Colorado baker with religious objections to same-sex marriage who had lost a discrimination case for refusing to create a cake to celebrate such a union.

The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111, started in 2012, when the baker, Jack Phillips, an owner of Masterpiece Cakeshop in Lakewood, Colo., refused to create a cake for the wedding reception of David Mullins and Charlie Craig, who were planning to marry in Massachusetts. The couple filed discrimination charges, and they won before a civil rights commission and in the courts.

Mr. Phillips, who calls himself a cake artist, argued that two parts of the First Amendment — its protections for free expression and religious freedom — overrode a Colorado anti-discrimination law and allowed him to refuse to create a custom wedding cake.

In 2015, a Colorado appeals court ruled against Mr. Phillips. “Masterpiece does not convey a message supporting same-sex marriages merely by abiding by the law and serving its customers equally,” the court said.

In a Supreme Court brief, Mr. Phillips’s lawyers said “ He is happy to create other items for gay and lesbian clients.” But his faith requires him, they said, “to use his artistic talents to promote only messages that align with his religious beliefs.”

“Thus,” the brief said, “he declines lucrative business by not creating goods that contain alcohol or cakes celebrating Halloween and other messages his faith prohibits, such as racism, atheism, and any marriage not between one man and one woman.”

The brief said Mr. Mullins and Mr. Craig could have bought a cake from another baker and in fact “easily obtained a free wedding cake with a rainbow design from another bakery.”

Jack Phillips commented on today’s news:

“Regardless of your viewpoint about same-sex marriage, shouldn’t we all agree that the government shouldn’t force us to speak or act in a way that violates our deepest convictions?” Phillips queried in his prepared statement. “Like the one in Colorado will result in kind-hearted Americans being dragged before state commissions and courts, and punished by the government for peacefully seeking to live and work consistent with their beliefs about marriage? The couple who came to my shop that day 5 years ago are free to hold their beliefs about marriage, and all I ask is that I be allowed the equal opportunity to keep mine.”

Lawyers Kristen Waggoner and Michael Farris also commented:

“It’s never been about Jack’s willingness to sell products or services to people based on who they are,” he said. “If an LGBT person came to his cake shop wanting to buy a pre-existing cake, he’d be happy to for any purpose.”

But both Farris and Waggoner said that requiring him to write messages that go against his religious beliefs, including one promoting same-sex marriage, is where he draws the line.

The lawyers for the couple involved, responded:

“[I]t is no answer to say that Mullins and Craig could shop somewhere else for their wedding cake, just as it was no answer in 1966 to say that African-American customers could eat at another restaurant.”

(Cross-posted at The Jury Talks Back.)

–Dana

[guest post by JVW]

Since the final decisions from this closing Supreme Court term will likely come down early on Friday morning while many of us Pacific Coasters are still tucked snugly in bed, I thought I should start an open thread so we can separate our legal discussions from the items that Dana will be serving up for us to mull over the weekend. Here is what to look for from 1 First Street, Washington, DC 20543 tomorrow morning:

Biden v. Nebraska and Department of Education v. Brown
These are the two big cases to determine whether the Biden Administration invoking the 2003 HEROES Act in the context of the pandemic can unilaterally cancel up to $20,000 in student loan debt for qualified borrowers, in essence committing somewhere between $400 billion and $1 trillion in taxpayer dollars without so much as the assent of Congress. We’ve been following this case a bit here, and although it did seem during oral arguments that a majority of Justices were skeptical that the President had such authority, there was also some concern as to whether the plaintiffs in this case had legal standing to pursue these matters. Since then we have discovered that far from helping students dig out of financial strife, the COVID-related pauses in student loan repayments have only encouraged borrowers to accumulate more debt, a fact that might have made its way into the attention of even Sonia Sotomayor.

I hope that tomorrow morning the Court decides that allowing the President the latitude to appropriate that level of targeted funding on his own volition is simply a Constitutional abomination. That will not be the end of the story: as with a Federal court’s earlier admonishment to curtail the COVID-era rent payment pause which was then cynically ignored until the Supreme Court stepped in and told them to knock it off, Team Biden will likely concoct some other justification for granting relief to student loan payers through some sort of Executive act, if only to keep the charade alive until the 2024 election. This is all the more reason why tomorrow’s ruling needs to be pointed, direct, and unambiguous in slapping down this abuse of power.

303 Creative v. Elenis
Five years ago the Court took on the case Masterpiece Cakeshop v. Colorado Civil Rights Commission which considered whether the defendant (CCRC) could require the plaintiff, Jack Phillips, the proprietor of Masterpiece Cakeshop, to create and decorate a customized wedding cake for a gay wedding. Dana provided coverage of the story. In that case, the Court declined to rule on whether a state regulation such as Colorado has which requires a business owner, Mr. Phillips, to provide a service in support of an event which violates his conscience thus infringes upon his freedom of speech, religion, and association. Instead, the Court engineered a narrowly-tailored 7-2 win for Mr. Phillips by finding that the CCRC failed to show neutrality in their decision to order Mr. Phillips to comply, with the CCRC having a record of statements and actions showing contempt and hostility to his religious beliefs. Justices Gorsuch, Alito, and Thomas signed on to a concurring opinion expressing regret that the Court failed to rule on the First Amendment implications of Mr. Phillips’ position.

So when the Court punted on the central issue of how to weigh First Amendment issues versus a client’s request for services, it was only a matter of time before they would be reviewing a similar case. This came with 303 Creative v. Elenis, in which another Colorado business owner, this time a graphic artist by the name of Lorie Smith, wishes to opt-out of participating in LGBTQ weddings (her business creates websites for organizing weddings) and has thus filed a preemptory challenge to the Colorado Anti-Discrimination Act (CADA). She has lost at both the district and circuit levels. The Supreme Court will rule only on her free speech claims — her free exercise of religion claim is not being reviewed by the Court — after a divided Tenth Circuit ruled that Ms. Smith’s services are so unique that her decision to deny them to LGBTQ clients leaves them without anywhere else to turn, a contention which the dissenting judge said would open the door to allowing government to compel messages from artists everywhere. Maybe the Chief Justice can find another way to split the baby, but it seems more likely that the Court is actually going to have to decide just how far government can go to force commercial artists to create speech with which they fundamentally disagree.

Have at it in the comments, you East Coasters and other assorted early risers. I’ll look forward to reading what you have to say tomorrow morning.

– JVW

[guest post by Dana]

Unsurprisingly, the Colorado Court of Appeals upheld a ruling that would make Jack Phillips, Christian baker and owner of Masterpiece Cakeshop, violate his religious beliefs by compelling him to provide wedding cakes for gay couples.

From the opinion:

This case juxtaposes the rights of complainants, Charlie Craig and David Mullins, under Colorado’s public accommodations law to obtain a wedding cake to celebrate their same-sex marriage against the rights of respondents, Masterpiece Cakeshop, Inc., and its owner, Jack C. Phillips, who contend that requiring them to provide such a wedding cake violates their constitutional rights to freedom of speech and the free exercise of religion.

As we’ve already seen, the rights of Christian vendors are becoming subordinate to the rights of gay couples to purchase wedding cakes or other standard wedding fare from any vendor they choose, regardless of the business owner’s religious beliefs.

Mr. Phillips said that creating a wedding cake for a gay couple would force him to convey a message with which he disagrees, but the court said in its opinion that the bakery is a public accommodation and thus forbidden by Colorado law from discriminating on the basis of sexual orientation.

As a result, “a reasonable observer would understand that Masterpiece’s compliance with the law is not a reflection of its own beliefs,” said the court.

“We conclude that the act of designing and selling a wedding cake to all customers free of discrimination does not convey a celebratory message about same-sex weddings likely to be understood by those who view it,” said Judge Daniel M. Taubman in the 64-page opinion.

“We further conclude that, to the extent that the public infers from a Masterpiece wedding cake a message celebrating same-sex marriage, that message is more likely to be attributed to the customer than to Masterpiece,” said the opinion.

Phillips, like other Christian wedding vendors, believes that there is a difference between serving gays (which he does) and providing a service specifically for a same-sex wedding ceremony.

However, the court did not see it that way:

[T]he court said that the bakery’s distinction between serving gay customers and baking a gay wedding cake is “one without a difference.”

“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,” said the opinion.

From Phillips’ team:

“Americans are guaranteed the freedom to live and work consistent with their faith. Government has a duty to protect people’s freedom to follow their beliefs personally and professionally rather than force them to adopt the government’s views,” said ADF senior legal counsel Jeremy Tedesco in a statement. “Jack simply exercised the long-cherished American freedom to decline to use his artistic talents to promote a message with which he disagrees. The court is wrong to deny Jack his fundamental freedoms. We will discuss further legal options.”

As it now stands, if Phillips refuses to provide a cake for a gay wedding, he will face fines. Also, he was ordered to “take remedial measures, including comprehensive staff training and alteration to the company’s policies” as well as being required to submit to monthly compliance checks.

–Dana