Masterpiece Cakeshop, the Pence Policy, and Hard Questions about Religious Liberty Versus Discrimination

The conflict between religious liberty and anti-discrimination values is public and dramatic.  Many have strong, solidified opinions about how to resolve the conflict, and there isn’t an obvious way to balance or compromise the interests.  Two of the most recent and most contentious iterations of this conflict – Masterpiece Cakeshop v. Colorado Civil Rights Commission and Mike Pence’s dining policy –demonstrate the tough questions facing both sides of this debate.


Masterpiece Cakeshop presents the issue of whether a self-described “cake artist” has a First Amendment right to refuse to create custom-made cakes for same-sex weddings.  Jack Phillips, who owns the small business called Masterpiece Cakeshop, is happy to sell same-sex partners other treats for their weddings.  However, he objects to the state of Colorado compelling him, via their public accommodations law that prohibits discrimination on the basis of sexual orientation, to sell a cake that celebrates same-sex marriage.  Phillips doesn’t want to make art that expresses a message contrary to his religious faith, just as he forgoes the profits he could earn if he sold alcohol or Halloween-themed cakes.

The petition for certiorari for Masterpiece Cakeshop has been considered at five Supreme Court conferences.  The Justices still haven’t issued an order on whether to grant or deny review, which may mean that one of the Justices is writing a dissent to the denial of certiorari.

On balance, I do not think the Supreme Court should review, or reverse, the Colorado Court of Appeals’s decision in Masterpiece Cakeshop.  For one, this case is a bad vehicle for review because Phillips refused to sell a wedding cake to a same-sex couple before the particulars of the cake’s design were even discussed.   For another, I think the Colorado Court of Appeals’ decision, holding that Phillips engaged in unlawful discrimination and that his behavior is not protected by the First Amendment, is probably correct.  The business of making and selling cakes likely involves expressive conduct, not pure speech, and may even be categorized as prohibiting simply the conduct of discrimination – treating similarly situated individuals who want cakes differently.  Plus, a message celebrating a same-sex marriage on a wedding cake is unlikely to be attributed to the cake seller.

However, difficult, thorny issues with the lower court’s ruling abound.  The creation of an artistic, custom-made wedding cake may actually constitute pure speech, just as the creation of an oil painting is pure speech, even though the process of creation involves some conduct.  The state of Colorado asserts that it can lawfully compel a commercial painter to paint portraits for same-sex weddings as well.  The state’s position seems based on the dangerous view that if a law compels speech, then the speech will not be attributed to the individual.  This circularity (if the state forces you to create speech it is allowed to force you to create speech) will seriously interfere with First Amendment rights of private speakers, who cannot be forced to be the mouthpiece of the state.  The fact that Phillips sells his cakes for profit may not help the legal analysis, because many artists and writers also earn a living creating expression.

Further, the Colorado Commission on Civil Rights has drawn some potentially inconsistent distinctions in its application of Colorado public accommodations laws.  Muslims are permitted to refuse to sell cakes disparaging the Koran, and African Americans need not sell cakes to white supremacists.  Although these cases seem easily distinguishable because the refusal to create a cake is based on the message conveyed, cake sellers are also permitted to refuse to sell cakes containing religious messages, including Bible passages condemning homosexuality, even though Colorado law also prohibits discrimination on the basis of religion.

The lower court distinguished these cake sellers as not discriminating against the religion, just the offensive message, especially because these bakers created other cakes with Bible passages.  But Phillips claims to be doing the very same thing when he argues that he is happy to sell anything to LGBTQ individuals except wedding cakes, which have an inherently celebratory message.  The lower court’s decision must hinge on the idea that same-sex marriage is inextricably intertwined with sexual orientation (and exclusively and predominantly engaged in by a particular class of protected individuals) in a way that certain religious messages are not inherent to the religious status.  This may be right.

Ultimately, I hope the Supreme Court does review a case similar to Masterpiece Cakeshop to provide satisfying answers to these hard questions.  More than that, I hope the politically charged reactions to this type of case are tempered by the difficult line-drawing issues it presents.

In the same vein, I wish there were greater acknowledgement of the nuances presented by the troubling revelation that Vice President Mike Pence refuses to dine alone with women who are not his wife.  His religious beliefs, including the belief in the sanctity of marriage, inspire this loving prophylactic practice, but it treats female coworkers differently than male coworkers and treats opposite-sex relationships as inherently suspect.  I do not think anyone in a position of power should be permitted to behave this way, and am frankly surprised at this antiquated view of male-female interactions, but I find the issue more difficult than many who share this view.

I do not believe, for example, that the behavior must be inherently sexist or expresses the view that women are mere temptresses or objects, especially if Pence’s wife must also comply with the practice of not dining with men.  Both genders are acknowledging that mutual attraction happens and often leads to infidelity.  Mike Pence’s behavior seems silly, to me, and imposes extra burdens on women, but the outrage directed his way elides some hard questions about what spouses should be entitled to decide to protect their marriages, and how much we must put our own beliefs and ideals aside to assimilate to public values.  Many religious practices and beliefs are illogical (that is why “faith” is required), and, to my mind, even hateful, but we protect freedom of religion and conscience to honor an important sphere of freedom.

Both Masterpiece Cakeshop and the Pence policy should be considered with the tough questions in mind.  At some point, many of our views will be denied public acceptance, and at many points, we must balance our private values and expression with the demands of engaging with the public.

7 thoughts on “Masterpiece Cakeshop, the Pence Policy, and Hard Questions about Religious Liberty Versus Discrimination”

  1. In all the civil rights cases the obvious problem is the business advertised to the public – a group they knew was composed of all beliefs and creeds which means goodbye to any ‘right of association’ claim. Far too late after that to subject the responding, invited, customer to a test they can ‘fail’ by being in the ‘wrong’ class protected by civil rights laws.

    But the Masterpiece case is the best one in the que currently because only one employee, the owner, makes wedding cakes. Elane Photography admitted hiring contract photographers in the past, Arlene’s Flowers had an long-term employee quit on the spot when told to illegally discriminate – bet Eryn would have taken care of the order.

    And the Star Trucking case involving Muslims refusing to deliver alcohol shows that the federal Religious Freedom Restoration Act should allow any employee to ask for religious accommodation, but this doesn’t absolve the business of its obligation to respect the civil rights of the customer.

    Some speculate this is about someone writing a dissent, I’m betting on it’s a case of 3 justices awaiting the arrival of a fourth vote to grant review.

    Theboutcome will be interesting either way.


  2. Thanks for the comment on this strange case that seems to be in perpetual limbo. I don’t actually know the arguments in the case, but isn’t there a free exercise claim at work here as well? Your argument is pretty convincing if you focus on the case as solely about artistic expression (comparing the cake maker with all other artists), because then you treat it as not pure speech, it’s commercial, etc. But are there free exercise claims that would form the basis for a different argument, taking up something like the Sherbert accommodationist position? With Scalia gone, I’m curious if some justices (including Gorsuch) would be willing to question the hardline Smith position on the free exercise issue. Moreover, if there’s a cert dissent (Alito, I assume, maybe with Thomas too), maybe it’s about this distinction, broad speech rights vs. particular religious claims?

    I might be reading tea leaves, but I thought that’s what Alito might have been suggesting in some recent speeches of his. I think at the Federalist Society he said something about the increasing need to guard religious liberty.

    A few links on this:
    And he recently said something similar:

    Anyway, I don’t know the cake case but I’m curious what you think of the potential religious liberty claims rather than purely speech claims.


    1. The only reason these cases are proceeding on sexual orientation grounds is because it limits them to the state and makes a writ of certiorari petition the only federal avenue. If the feds say there is a ‘religious liberty’ excuse to exclude the customer the next case will be about competing religious liberties, e.g. The florist shop owner is Southern Baptist but has invited the public that includes Lutherans who belief that marriages can happen regardless of the sexes of the couple.

      The religious liberty of the customer is protected too and they are the ones who were on the receiving end of an invitation to come buy the business’ wares.

      This is just the first step in this dance to try and justify religious discrimination by a business making invitations to the public.


      1. Oshtur, this framing isn’t quite correct because religious liberty claims are asserted against the government. Although public accommodations laws prevent private discrimination on the basis of religion, that’s a civil rights anti-discrimination issue, not a religious liberty issue. It’s important to note in these cases who is the relevant actor – because the state is the one with the coercive power to deprive people of liberty.


      2. That’s why this case includes the 2 customers this is about one citizen’s religious liberty vs another citizen’s which the civil rights laws are there to protect. Religious liberty means the business owner, the actor, can practice their religion as they see fit, but they can’t require customers to participate in their religious expression nor invite people to do business with them when they have no intention of honoring that invitation because of the customer’s own beliefs.

        Since there are other ways the business can sell their products in compliance with their faith other than an offer to the general public it would seem the public’s requirement that the public be treated without bias in these civil rights areas is Constitutional.

        But our government is broken and I wouldn’t be shocked if a newly minted right to religious discrimination in public offers is discovered. Of course if they can treat potential customers differently they can do the same for potential employees. Once people start getting treated differently because of their standing in the eyes of the business owner’s beliefs it will be a Pandora’s box no one will like soon enough.


  3. PS: I’m not an Alito advocate (despite this and my Packingham comment). I’m just curious about the constitutional questions and the different justices particular views on them.


Comments are closed.