By Dr. John Sparks


Who would have guessed that the religious liberty and free speech rights of Americans would be tested in a dispute over the baking of a wedding cake? A case will be argued before the U.S. Supreme Court this term involving whether a baker in Colorado can be compelled by the state to make a cake for a same-sex wedding reception when the baker has religious and free speech objections to using his artistry that way.

Jack Phillips has been baking cakes and other confections for 22 years in his business, Masterpiece Cakeshop, located in Lakewood, Colorado, west of Denver. Mr. Phillips says that he makes, on average, 200 custom cakes a year, and they are not cheap — often running $500 apiece. That is because they are one-of-a kind artistic creations.

Phillips became a Christian in the 1970s. His faith puts limits on what he will bake. For example, he refuses to bake cakes that portray “witches and ghosts for Halloween” or “sexually suggestive images.” In keeping with his Christian convictions that marriage should between a man and woman, he would not help in the celebration of gay unions by baking a wedding cake for such occasions.

In July 2012, Jack’s baking world changed abruptly. Two gay men, Charles Craig and David Mullins, tried to order a wedding cake from Phillips for their same-sex marriage reception. Phillips politely told them, according to a Daily Signal interview: “Sorry, guys, I don’t make cakes for same-sex weddings.” According to Phillips the two angrily stomped out of his shop referring to his business as a “f—ing homophobic cake shop.” They translated their outrage into a legal charge filed against Phillips with the Colorado Civil Rights Commission under the Colorado Anti-Discrimination Act (CADA). Phillips, they claimed, had discriminated against them because of their sexual orientation when he refused to bake a wedding cake for them. (In response, another bakery donated a rainbow cake to them for the occasion.)

The commission, and eventually the Colorado Appeals Court, rejected Phillips’ claim that his free speech/expression rights and religious liberty rights under the First Amendment would be infringed upon by requiring him to bake the cake for Craig and Mullins. The order of the Colorado administrative law judge stuck. The order was specific and intrusive. It said that if Phillips bakes cakes for opposite-sex couples he must do the same for same-sex couples and that he must retrain his staff to do likewise. In addition, the order required Phillips to report to the commission every cake order he declined for two years. Therefore, to maintain his conscientious stance, Phillips has not baked any wedding cakes, thus avoiding a violation of his religious scruples about baking cakes for same-sex unions. Not surprisingly, he says that this has meant a considerable loss of income for his business.

Although the religious liberty aspect of the case has received the most attention, and will be discussed below, the case also raises the question of whether being compelled to bake a custom-made cake for a same-sex wedding should be regarded as an infringement of “freedom of speech” and, therefore, protected from the commission’s order. At first blush, it may seem a stretch to regard cake-baking as “speech.” However, the courts long ago recognized that the meaning of speech does “not end at the spoken or written word.” Engaging in conduct that intends to express an idea is “speech.” For example, the U.S. Supreme Court has upheld as protected speech the right of students to protest the Vietnam War by wearing black armbands to school and the right of laborers to peacefully picket in a labor dispute, both examples of conduct in which words may not be spoken.

In addition, besides being free to speak, citizens also have a right to be free from being compelled to speak a message provided by the government or another person. The oldest and best-known case embodying this idea — called the “compelled speech doctrine” — is W. Va. State Board of Education v. Barnett. There the court ruled that public-school children, who (in this case) were Jehovah’s Witnesses, could not be required to salute the flag and say the pledge of allegiance, which was against their religion’s teachings. The court based its decision not on religious liberty per se but upon the students being obliged by law to express a message that was contrary to their own beliefs and convictions. Phillips said that he should be protected in the same way.

The Colorado Court of Appeals did not think so. Amazingly, it claimed that Phillips had not shown that by baking the cake he would be conveying a message celebrating same-sex marriage. The court called Phillips’ baking “conduct” and not “speech” at all, suggesting it contained no message. In light of the fact that a variety of federal courts have found everything from tattooing to nude dancing to be “speech,” this seems to be an indefensible position by the court.

Secondly, the Colorado court asserted that even if such a “message” were said to exist, it would likely be attributed to the customer and not to Masterpiece Cakeshop. Furthermore, if it were attributed to Masterpiece, observers would know that Masterpiece was simply complying with the law, not endorsing a view in favor of same-sex marriage. To top things off, the Colorado court said that Phillips could always post a sign in his window declaring his position on same-sex marriages even though he would have to keep baking cakes for gay marriages.

Frankly, the Colorado court’s message to Phillips makes a mockery of the compelled speech doctrine. In short, it says to him: You must bake cakes for same-sex weddings and any supportive message conveyed will not be attributed to you, or, at the very least, customers will know you baked against your convictions because you can post a sign to that effect in your window.

Phillips’ second claim is that his religious liberty has been denied him by Colorado’s Anti-Discrimination Act. Unfortunately, winning this argument was made more difficult by a 1990 Supreme Court decision, Employment Division v. Smith. There, two defendants claimed that their free exercise of religion was infringed upon because they were criminally prosecuted for taking an illegal drug — peyote — during a Native American religious ceremony. The Supreme Court upheld their conviction saying that the law in question was “neutral” and “generally applicable” and persons who disobeyed such a law would not be protected by the free exercise clause of the First Amendment as long as the government could show a rational reason for the law. The Colorado Appeals Court in the Masterpiece case relied heavily upon Smith, claiming that the Colorado Anti-Discrimination Act had been applied to Phillips’ bakery in a “neutral” and “generally applicable” way and that Colorado had a rational aim, namely, ending discrimination.

Masterpiece Bakeshop, however, has countered Colorado’s claims of neutrality and general applicability. Masterpiece argues that the very Civil Rights Commission that condemned the refusal to bake by Jack Phillips found nothing legally objectionable about the refusal of three secular bakeries to create custom cakes that contained messages disapproving same-sex marriage. That is hardly neutrality and general applicability.

Furthermore, the Smith decision, upon which Colorado has relied, recognizes that religious claimants can combine their claims for religious liberty with free speech claims in what is called a “hybrid-rights” argument. Phillips’ lawyers have forcefully made such a claim for protection. Why would that make a difference? Because under this part of the Smith decision, the prospect of a state government curtailing two guaranteed First Amendment rights would require the Supreme Court to insist that Colorado provide what is called a “compelling” reason for its actions. In short, Colorado would have to convince the court that merely allowing Phillips to refuse to bake a cake celebrating a union to which he had credible speech and religious objections would fundamentally undermine its anti-discrimination policy. Moreover, Colorado would have to maintain this position even though Phillips sold other baked goods (without messages) to gays, and even though the gay plaintiffs  “introduced no evidence … that same sex-couples have problems accessing cake artists” in the area.

Should a majority find in favor of Phillips and Masterpiece, the Supreme Court will be upholding the right of Americans to be free from being compelled by the state to express a message against one’s beliefs, whether that right is regarded as freedom of speech, free exercise of religion, or a hybrid of the two.

Dr. John A. Sparks is the retired dean of Arts & Letters at Grove City College and a fellow for The Center for Vision & Values. He is a graduate of the University of Michigan Law School and a member of the State Bar of Pennsylvania. He is a frequent contributor of articles based upon U.S. Supreme Court developments.