Tales and Truth in the Masterpiece Cakeshop Arguments

Charlie Craig, left, and David Mullins touch foreheads after leaving the Supreme Court, which heard <em>Masterpiece Cakeshop v. Colorado Civil Rights Commission</em>, December 5, 2017, in Washington.

In July 2012, Charlie Craig and David Mullins went into Masterpiece Cakeshop to buy a wedding cake. The store owner, Jack Phillips, refused to sell the same-sex couple a cake. The Colorado Civil Rights Commission and state courts have agreed that Phillips’ refusal to serve Craig and Mullins violated Colorado’s anti-discrimination act, which bars businesses such as Masterpiece Cakeshop from refusing service based on characteristics including religion, race, and sexual orientation.

This week, the U.S. Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission and will decide whether Phillips’ has a constitutional right to discriminate under the First Amendment. At stake is whether nondiscrimination laws will continue to provide meaningful protection against discrimination, not only for LGBTQ people but potentially for other protected classes as well.

The oral arguments were intense, and lawyers representing Masterpiece advanced three key falsehoods.

Falsehood 1: A ruling for Masterpiece Cakeshop could be narrow

The stakes are incredibly high—with a ruling for the bakery potentially undermining all civil rights laws—though the statements supporting Masterpiece downplayed this reality.

The U.S. Department of Justice argued that a win for the bakery would not undermine civil rights laws because most businesses would not seek a similar exemption. This is despite evidence that in other areas, such as health care, for-profit corporations do seek out accommodations when they are available. Noel Francisco, U.S. solicitor general, claimed the case was important “for a small group of individuals” in particular circumstances like Phillips’.

However, the justices seemed to be seeking assurance that a ruling for Masterpiece would not cause the complete unraveling of nondiscrimination protections. Justice Elena Kagan named three potential areas where it could be difficult to draw a line for limiting exemptions to the nondiscrimination law: which vendors would receive exemptions; the public accommodations for which exemptions would be possible; and which communities would be vulnerable to discrimination. Justice Stephen Breyer feared that there would be no limiting a decision in favor of the bakery, which would cause chaos in nondiscrimination law. Even Justice Anthony Kennedy, widely acknowledged to be the swing vote in the case, seemed concerned. He said to Francisco, “[T]he problem for you is that so many of these examples … do involve speech. It means that there’s basically an ability to boycott gay marriages.”

As the justices’ questions showed, there seems to be intense difficulty limiting the potential impact of a ruling for Masterpiece. Allowing a business that is open to the public to cite religious beliefs and free speech to refuse service to a customer because of who they are would completely undermine civil rights laws. To quote former U.S. Supreme Court Justice Antonin Scalia, it would “make the professed doctrines of religious belief superior to the law of the land, and … permit every citizen to become a law unto himself.”

Falsehood 2: Rejected couples can get their cake down the street

Francisco argued, “Here, of course, you have these products that are widely available from many different sources.” Kennedy unfortunately echoed this faulty line of thinking, describing accommodation as “quite possible,” and seemed confident the court could assume there were “other good bakery shops that were available.”

Importantly, this claim overlooks the immense emotional and psychological harm LGBTQ people face when they experience discrimination. Service refusals, including the kind Craig and Mullins faced at Masterpiece Cakeshop, cause dignitary harm to LGBTQ people and can manifest in increased mental health disparities. In asking whether a couple might go elsewhere, assessing the ramifications on their emotional health should not be overlooked—and indeed, considering Craig and Mullins’ public humiliation and deep shame and embarrassment should be of utmost concern to the court.

Suggesting that people can seek services elsewhere also overlooks the impracticality of assuming other businesses will be available to serve a rejected couple. In particular, justices raised the concerns of military families, many of whom are located in areas with sparse options and few alternatives if turned away.

Additionally, according to a Center for American Progress survey, 1 in 4 LGBTQ people said that they faced discrimination based on their sexual orientation or gender identity in 2016. Not only is anti-LGBTQ discrimination pervasive, but it also raises legitimate questions about access to services, including in the context of wedding-related services. According to a CAP brief, 1 in 10 LGBTQ people said that it would be “very difficult” or “not possible” to find another bakery, and that number went up to 3 in 10 for LGBTQ people in small towns and rural areas. Setting aside the long-lasting harm that can be done through the denial of service, the court simply cannot expect that all rejected couples will be able to access comparable services.

Falsehood 3: Selling the cake is participating in the wedding

A final issue, which received less discussion but is still incredibly important, was the claim of Phillips’ lawyers about his role as the cake baker in the wedding. Justice Ruth Bader Ginsburg posited that at a wedding ceremony, the couple getting married and the officiant overseeing the wedding speak. She then asked Kristen Waggoner, one of Phillips’ lawyers, who else speaks. Waggoner replied, “The artist speaks, Justice Ginsburg. It’s as much Mr. Phillips’s speech as it would be the couples’.”

Later in the arguments, Craig and Mullins’ lawyer, David Cole, was quick to point out that bakers have not been considered intimately connected to the celebrations their cakes commemorate in other circumstances: “When a mom goes into a bakery and says make me a happy birthday cake for my child, and then she takes that cake home for her four-year-old son’s birthday party, no one thinks that the baker is wishing happy birthday to the four-year-old.”

Perhaps even more relevant to Masterpiece Cakeshop, in an amicus brief, more than 1,300 faith leaders address this untrue assertion. The faith leaders—“hundreds of whom have presided over countless religious wedding ceremonies—respectfully submit that apart from the fact that wedding cakes are not religious icons, it is typically a wedding officiant who proclaims ‘that a marriage has occurred. … Indeed, neither Phillips nor his cake would have actually ‘participated’ in a wedding at all; the cake Craig and Mullins ultimately obtained from another Colorado baker was served at a reception roughly two thousand miles away from their actual wedding, which occurred in Massachusetts.”

The fundamental truth: LGBTQ people deserve dignity and equal treatment

In previous rulings on the rights of same-sex couples, Justice Kennedy has articulated a strong understanding of why the government must act to protect LGBTQ people from discrimination. He has written that specifically denying “legal protection from the injuries caused by discrimination” for LGBTQ peoples is not justified by “legitimate state interests.” And he has addressed his own quandary about how to protect LGBTQ people from discrimination while also showing respect for religious communities that may not share an affirming view of marriage equality. In the landmark Obergefell decision that legalized same-sex marriage, Justice Kennedy wrote:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. … The Constitution, however, does not permit the State to bar same-sex couples from marriage on the same terms as accorded to couples of the opposite sex.

During Masterpiece oral arguments, Justice Sonia Sotomayor articulated how culture does not change on its own: “[T]he problem is that America’s reaction to mixed marriages and to race didn’t change on its own. It changed because we had public accommodation laws that forced people to do things that many claimed were against their expressive rights and against their religious rights.” As Americans have come to a fuller understanding of who is deserving of dignity and full equality, the law has moved to rebalance its calculation of which rights ought to be protected to advance the most justice.

If the justices are to hew closely to the court’s own recognition of LGBTQ people as deserving of dignity and equal protection under the law, and to the court’s acknowledgment that freedom of religion and LGBTQ nondiscrimination protections can coexist in the United States, the Supreme Court must decide in favor of Charlie Craig and David Mullins. This would ease the fears of millions of LGBTQ people and their families and loved ones by affirming once more that they are worthy of equal protection under the law.

Claire Markham is the associate director for the Faith and Progressive Policy Initiative at the Center for American Progress.