Beyond Masterpiece Cakeshop: First Amendment vs. Anti-Discrimination Law

On December 5, 2017, Masterpiece Cakeshop v. Colorado Civil Rights Commission reached the U.S. Supreme Court, where it embodied a fundamental clash between two cherished principles: the First Amendment’s protection of the free exercise of religion vs. the rights of states to protect certain classes of people — in this case, the LGBTQ+ community — from discrimination.

Six months later, by a 7-2 vote, the Court overturned the lower court’s ruling against Masterpiece Cakeshop.

“I was devastated when I first read the decision,” says Paula Greisen, a civil rights and employment attorney at Greisen Law in Denver. “But then I read the opinion a half dozen times throughout the day. By the end of the day, I had changed my feelings.”

Instead of ruling on the constitutionality of Colorado’s anti-discrimination laws as they pertain to religion, the Court’s majority opinion, authored by Justice Anthony Kennedy, found that certain statements made by members of the Colorado Civil Rights Commission (CCRC), such as “religion has been used to justify all kinds of discrimination through history,” showed anti-religious bias. On the bigger issues, the court punted.

History of the Masterpiece Cakeshop Case

The Masterpiece Cakeshop case went back to 2013, when Greisen received a call from the Colorado chapter of the American Civil Liberties Union (ACLU).

The CCRC had found probable cause that Jack Phillips, owner of the Masterpiece Cakeshop in Lakewood, had discriminated in 2012 against a same-sex couple, Charlie Craig and David Mullins, by refusing to bake them a wedding cake, based on Phillips’ religious beliefs.

The case was likely to go before an administrative law judge, and the ACLU asked Greisen, who often represents members of the LGBTQ community, to be lead counsel.

“I don’t think anybody envisioned how far the case would go,” says Greisen.

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What Masterpiece Cakeshop Means for Anti-Discrimination Law

Some First Amendment and civil rights experts are concerned that the majority opinion in Masterpiece Cakeshop hints at ideological shifts in the court that will affect same-sex marriage, religious objections, and state laws.

“It portends a future in which discrimination is permitted much more broadly,” says John Holland, a civil rights attorney at Holland, Holland Edwards & Grossman in Denver.

For him, the legal principle is simple: “If you choose to sell things in the world and invite the world in to buy them, you must not be able to discriminate against who can purchase your things based on their identity or orientation or race or sex,” he says.

“If you can so discriminate, why can’t a Christian fundamentalist refuse to serve a Jew or a Muslim based on their sincerely held belief that, to them, apostate believers who refuse to yield their religious views are going to hell?”

If Jack Phillips had said, ‘Let me pour you a cup of coffee,’ and they had had a respectful dialogue, I think Masterpiece 1.0 never would have happened. It’s a shame our country doesn’t seem to be able to have that cup of coffee and that dialogue these days.

Masterpiece Cakeshop‘s Impact on First Amendment Rights to Freedom of Speech and Religion

Others say the Masterpiece case was, at its core, actually about freedom of speech, not necessarily freedom of religion.

“There are at least two Supreme Court decisions that I know of, one involving the Boy Scouts and one involving a privately sponsored parade, where the court protects the right of private individuals to not express approval of homosexuality,” says Robert F. Nagel, professor emeritus of constitutional law at the University of Colorado Law School.

“In both cases, the court comes right out and says the state violates the principle of freedom of speech when it seeks to require people to express approval of something that they disapprove of — in this case, the morality of homosexuality.”

Nagel adds, “The court has long taken the position that the price we pay in hurt feelings or perceived danger to society is worth it because of the greater advantage of having a free exchange of ideas.”

Unfortunately, says Nagel, the Supreme Court effectively limited the free speech of the CCRC members in its ruling. “The court is in effect disenfranchising people and participants who have certain views to articulate those views,” says Nagel.

Cases Following Masterpiece Cakeshop 1.0: Free Speech, Religious Liberty, Anti-Discrimination

With so much left undecided, a case that some observers called “Masterpiece 2.0” arose, in which Autumn Scardina, a transgender woman, filed a complaint with the CCRC against Phillips for refusing to bake a pink cake with blue frosting to celebrate her transition.

The CCRC found probable cause of discrimination, but ultimately dropped the case to settle a separate lawsuit from Phillips alleging religious persecution. After this dismissal, Scardina sued Phillips directly. The lawsuit reached the Colorado Supreme Court, which dismissed it on procedural grounds, ruling that Scardina should have appealed the CCRC’s dismissal before suing in state court. The court did not consider the substantive constitutional issues.

A substantive ruling on these legal questions came in the U.S. Supreme Court’s 2023 case, 303 Creative LLC v. Elenis, involving a graphic designer who refused, on religious grounds, to design wedding websites for same-sex couples. The Court ultimately decided the case on free speech grounds, not religious liberty, ruling that the Free Speech Clause prohibits state anti-discrimination laws from forcing people to create expressive designs conflicting with their personal beliefs.

Greisen laments the breakdown in civic discourse and understanding reflected in these cases. “When Charlie and David walked into the cake shop and said they wanted a wedding cake, if Jack Phillips had said, ‘Let me pour you a cup of coffee,’ and they had had a respectful dialogue, I think Masterpiece 1.0 never would have happened,” she says.

“It’s a shame our country doesn’t seem to be able to have that cup of coffee and that dialogue these days.”

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