On Tuesday the Supreme Court will hear oral argument in one of the most important cases it will decide this term, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Comm. Measured by the 90-plus friend-of-the-court briefs filed by everyone from the U.S. government to advocacy groups to self-described cake artists across the country, the case has attracted significant attention. And this attention is warranted: the case’s potential impact goes far beyond the narrow question of whether a bakery in Colorado has violated the state’s public accommodations law by refusing to sell a wedding cake to a gay couple.
The arguments within the many briefs filed in the case, as well as other pending court cases that relate to the issues involved, show just how high the stakes are in Masterpiece Cakeshop for the rights of people of all backgrounds across the country.
The key question in the case is whether the bakery and its owner can prevent the state civil rights law from being applied to them because they object on free speech and freedom of religion grounds to selling a cake that would be used to celebrate a gay couple’s wedding. Similar cases involving refusals to provide goods and services otherwise available to the public to LGBTQ individuals are pending before the Supreme Court and lower courts right now in Washington, Oregon, and other states. Other cases similarly challenge state rules that require the provision of reproductive health services, including access to abortion, as part of comprehensive health care plans. And in a North Carolina case, a lower court has stayed a lawsuit challenging the firing of a teacher because he disclosed that he was planning to marry a same-sex partner, pending the decision in the Masterpiece case.
The many amicus (friend-of-the-court) briefs filed in Masterpiece make clear that the implications of this decision could be very far-reaching. Civil rights groups like the NAACP, the National Women’s Law Center, and the National Federation of the Blind have explained that allowing religious or free speech exemptions from public accommodations, fair employment, and other civil rights laws would decimate such protections for women, people with disabilities, racial minorities and more. On the other hand, groups like the Billy Graham Evangelical Association, the US Conference of Catholic Bishops, Citizens United, and the Family Research Council all push in their briefs for very broad exemptions from such laws, some even arguing that public accommodations laws, particularly those that protect LGBTQ individuals, are illegitimate. One brief goes as far as to claim that the Colorado law “seeks to implement an irreligious totalitarian agenda under the guise of secularism.”
Although many religious groups filed briefs in support of the bakery, many others defended the state civil rights commission, including the Baptist Joint Committee, the Evangelical Lutheran Church, the Central Conference of American Rabbis, and the Anti-Defamation League. These briefs make a very important point: state civil rights laws like those in Colorado are important not only to prevent discrimination against people of color, LGBTQ people, and other minorities, but also to protect against discrimination on religious grounds. As one brief (which PFAW Foundation joined and helped write) puts it, the “arguments for a religious exemption permitting denials of service to same-sex couples could also be advanced to support denials of service to people of marginalized faiths,” such as a family refused service at an International House of Pancakes “for being Muslim.” The effort to carve out exemptions from civil rights laws and thus harm others in the name of religious accommodation, moreover, would violate a key principle of the First Amendment’s Establishment Clause: “religious accommodations under general laws” are permissible only if “no third parties are unduly burdened,” since otherwise the result would be to “impermissibly prefer the favored religious beliefs” over the “rights and differing beliefs” of those harmed.
Many of the amicus briefs on both sides of the case mirror each other. Senators, House members, state and local governments and elected officials, businesses, and professors all filed briefs supporting the bakery. Precisely the same types of groups filed briefs in support of the state Civil Rights Commission. One brief was unique: the United States under the Trump administration, unlike under previous presidential administrations of either party, filed a brief (and was recently granted permission to argue before the Court) in support of the business found guilty of discrimination.
The U.S. brief focuses solely on the free speech aspect of the case, arguing that baking a cake is expressive conduct and that the state’s interest in protecting against discrimination, at least with respect to LGBTQ individuals, does not justify “compelling” such expression for same-sex couples. As one critique of the U.S. brief has noted, however, the Supreme Court has “never held that for-profit businesses have a right to discriminate against anybody.” Indeed, “carving out a First Amendment exception to non-discrimination laws” would “blow a hole” through such laws, “fatally undermining” such protections for “all minority groups.”
One of the best amicus briefs countering the view of the U.S. and others who make the free speech argument in Masterpiece was filed by a group of First Amendment lawyers led by someone who almost always sides with free speech claims: New York lawyer Floyd Abrams. As Abrams’ brief explains, the bakery in this case “categorically refused” to sell a cake to the gay couple without any discussion of what the cake would look like, and were “not asked to apply any message or symbol to the cake.” In other words, Masterpiece’s real interest was not in the content of the expression on any particular cake, but instead was “in choosing who gets to buy the product.” It would be as if a vendor selling “Black Lives Matter” signs refused to sell one to a “white customer who she fears will alter” the message. In short, the Abrams brief explains, free speech rights under the First Amendment do “not protect a right to choose your customers based on their sexual orientation.”
We will not know until next year how the Supreme Court decides the Masterpiece case. The Court is likely to be closely divided, with Justice Kennedy playing a key role. But as the nation listens to the upcoming oral argument for clues on how the Court may rule, the lesson from the many briefs filed in the case is clear: the Court’s decision could have enormous consequences for laws that protect all Americans from discrimination.
Elliot Mincberg is a senior fellow at People For the American Way Foundation.