Masterpiece Cakeshop’s Opening Brief: The Free Speech Arguments

Masterpiece Cakeshop and Jack Phillips have filed the opening brief in the much-publicized Masterpiece Cakeshop v. Colorado Civil Rights Commission.  This Supreme Court case will decide whether cake artist Jack Phillips had a First Amendment right to refuse to bake a custom-made wedding cake for the wedding of Charlie Craig and David Mullins.  I have previously blogged about some of the hard questions in this case.  I have also written about what Justice Gorsuch’s dissent in Pavan v. Smith forecasts about his vote in Masterpiece Cakeshop.

In this post, I will lay out what I believe to be Phillips’s most compelling free speech arguments, based on his opening brief.  In later installments in this series, I will discuss Phillips’s arguments based on the free exercise clause of the First Amendment.  After Respondents’ briefs are filed, I will cover the arguments that application of Colorado’s public accommodations law does not violate either the free speech or free exercise clauses of the First Amendment.  Once all the briefs are filed, I will begin to form my opinions about how the case should be resolved.

Masterpiece Cakeshop is an easily sensationalized case.   In what is being framed as a battle in the culture wars between gay rights and religious liberties, the implications may be enormous, and the symbolic force is even larger.   I want to focus instead on the legal doctrine and reasoning.  For those who feel strongly about courts’ adherence to the rule of law, coherent, satisfying reasoning — that honors both the breadth and limits of the First Amendment — should be as important, if not more important, than the result reached.


As background, Phillips’s refusal to bake a cake for the wedding of Charlie Craig and David Mullins violated Colorado public accommodations law.  The Colorado Anti-Discrimination Act prohibits discrimination, on the basis of several protected categories, by those who provide goods and services to the public.   At the courts below, Phillips disputed that he was discriminating on the basis of sexual orientation.  Phillips argued that he is happy to serve LGBTQ customers any of his other treats, and thus is discriminating not on sexual orientation, but on the conduct of getting married.  The Colorado Court of Appeals held that “the act of same-sex marriage is closely correlated to Craig’s and Mullins’ sexual orientation, and therefore . . . Masterpiece’s refusal to create a wedding cake for Craig and Mullins was ‘because of’ their sexual orientation, in violation of [Colorado’s public accommodations law].”  The Supreme Court must defer to Colorado’s interpretation of its own public accommodations law, but will resolve the federal constitutional questions of whether applying Colorado law in this case violates either the free speech or free exercise clauses of the First Amendment.

Masterpiece Cakeshop and Jack Phillips’s argument assumes the following legal structure: (1) Phillips’s custom-designed cakes, as art, are “pure speech.”  Forcing an artist to create cakes expressing a message with which he disagrees violates his right against compelled speech.  This argument is strong to the extent the Court believes that cakes are the same as sculptures, made with icing instead of marble.  At that point, compelled speech cases such as Wooley v. Maynard, where the Court held that Jehovah’s Witnesses cannot be compelled to display “Live Free or Die” on their license plates, would control.

The fact that Craig and Mullins were denied the ability to order a custom-designed cake before even specifying a message would not be relevant, if the Court deems wedding cakes inherently celebratory.   Indeed, after reading the opening brief, I wonder if there is a true distinction between specifying “Congratulations Craig and David” and creating a custom-designed wedding cake with no message on it.  The wedding cake, with its attendant ritual, is the congratulations.  In its opposition to certiorari, the Colorado Civil Rights Commission acknowledged that if Phillips had been asked to communicate a message about same-sex marriage, this case would raise different issues.  But, I wonder if there is a real difference between forcing Phillips to custom design a cake and compelling him to write “Congratulations!”  Just as Phillips cannot be forced to write “I hate gay weddings” on a cake he sells to the public, perhaps so too he cannot be forced to include so much of his unique artistic expression in a wedding ceremony he finds objectionable.

Lurking in these types of cases is the legitimate question of whether Phillips’s religion is simply a cover for LGBT discrimination.   Religion was also used as a basis for racial discrimination in the not-so-distant past.  For the purpose of analysis, the Court will likely assume that Phillips is acting according to his sincerely held beliefs.  He also does not create cakes for Halloween or work on Sundays, which costs him business.  And when the Colorado Commission ordered him to create cakes for same-sex wedding if he does so for opposite-sex weddings, he chose instead to forfeit a substantial amount of business, and fire workers, and stop designing wedding cakes entirely.

(2) At the very least, cake design is expressive conduct that deserves free speech protection.  Cakes, with their food preparation component and their artistic component, are part conduct part expression, just like burning the flag in Texas v. Johnson or burning a draft card in United States v. O’Brien.  Colorado’s ruling was based on the idea that a reasonable observer would not perceive Phillips as endorsing same-sex marriage simply by designing and selling cakes.

The Colorado Court of Appeals held that creating and selling cakes is not expressive conduct because it evidences no particular message.  Further, any possible message would be attributed to the customer, not the seller.  Phillips instead wants the Supreme Court to consider whether the cake itself is expressive, not the act of selling the cake.  The target of the legal inquiry of what must be considered expressive may greatly affect the outcome in this case.

The rationale of the Colorado Court of Appeals does create both circular reasoning and a paradox.  Essentially, the court of appeals also held that if the public accommodations law forces Phillips to express a message (by selling a wedding cake for same-sex marriages), no one will think his compliance with the law means he is expressing a message in favor of gay rights.  Thus, if the speech is compelled through Colorado law, it does not express a message, and it is not compelled expression.  This rationale is deeply unsatisfying because it would undo the compelled speech doctrine entirely.  If the law forces you to speak, it is not forcing you to speak, so you have no First Amendment protections.

There are no easy answers here.  The corporate identity of a speaker does not diminish First Amendment rights; newspapers and other artists who work for profit enjoy the same free speech rights as those who create for pleasure.  Some propose that any work based on commission should not be protected by the First Amendment.   This is appealing as a bright-line test to balance civil rights and civil liberties, but is not a workable solution doctrinally.  This solution would deny free speech protections to obvious cases where it is deserved, such as to fine artists, poets, and writers who work on commission for a paying source.  The Colorado Civil Rights Commission does not appear, from its brief in opposition to certiorari, to take this strong stance.  However, perhaps a cake, being expressive conduct, is different than a poem, although Phillips runs his business and even uses his whisk and paintbrush logo to indicate that he views himself as an artist.

(3) Because Colorado’s law prohibiting discrimination on the basis of sexual orientation in public accommodations burdens Phillips based on his viewpoint, the public accommodations law requires Courts to apply strict scrutiny – the highest constitutional scrutiny.  Strict scrutiny should apply, according to Phillips, even if cake baking is simply expressive conduct.  He argues that the public accommodations law does not survive strict scrutiny because the law is not necessary to ensure that the LGBT community has access to the economic marketplace.  Phillips himself offers many baked goods to customers regardless of sexual orientation; he wishes only to refuse to create custom designs expressing messages he does not condone.  Further, First Amendment rights cannot be sacrificed to dignitary interests without undermining the entire purpose of free speech liberties – to allow those with unpopular and offensive viewpoints access to civil discourse in public life.

Masterpiece Cakeshop and Phillips make some compelling arguments.  In this country, we cannot ban speech just because we believe the speech is discriminatory.  Other countries have banned the burqa, for example, as expressing a sexist message or a message of religion inconsistent with civic, secular life.  Our free speech traditions would never allow this.  As the opening brief notes: “The path to civility, progress, and freedom does not crush those who hold unpopular views, pushing them from the public square.”  In some sense, the Colorado law is about forcing Phillips to show his acceptance of something he does not accept.  Discriminatory conduct can be prohibited by state law, but speech that is offensive to certain groups cannot.  This case will thus turn on how much a wedding cake, designed in a custom-tailored way, is a message of acceptance versus an item in the economic marketplace.

The next post in the series — on the religious liberty arguments — is here.








9 thoughts on “Masterpiece Cakeshop’s Opening Brief: The Free Speech Arguments”

  1. Just as Phillips cannot be forced to write “I hate gay weddings” on a cake he sells to the public, perhaps so too he cannot be forced to include so much of his unique artistic expression in a wedding ceremony he finds objectionable.

    Lurking in these types of cases is the legitimate question of whether Phillips’s religion is simply a cover for LGBT discrimination.

    1: So what? Unless State’s are now allowed to punish people for committing thought crime, Phillips is entirely allowed to hate gay people, and to not want to treat them with respect or validation.

    That’s basic / core freedom of speech / freedom of thought

    2: There are no hard questions here. You do not have the right to force someone else to do your bidding. You most certainly do not have the right to force someone to pretend he values something that he doesn’t value.

    If he was refusing to sell you a cupcake because you’re holding hands with another man, you might have a case. But refusing to be part of your “wedding”?

    A: You are insane if you want to force someone to do something for your wedding if he doesn’t want to be part of it
    B: An individuals right to say “no” is always more important than your “right” to ask for a “yes”


  2. The Jehovah Witness case was about a specific physical quality of the license plate. Just because the state has that as a motto doesn’t mean they can then refuse to have a license plate at all. Similarly creating a cake without a message is not interfering with the owner’s speech and he freely invited the public to come and buy them.

    The business voluntarily offered wedding cakes to the public knowing they could not discriminate by civil rights to any responding customer.

    In Piggie Park Enterprises the federal court said regarding the owner’s sincere belief that the races shouldn’t mix :

    “Undoubtedly defendant Bessinger has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens.”

    In United States v Lee the Amish business owner’s beliefs won’t allow him to collect social security tax from employees. The court said:

    ”Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.”

    And since the business can avoid the requirement of civil rights by using its right of association to operate as a private membership business there is no free speech issue. Find the acceptable people first and make the invitation of sale to just the membership. Worked for the Boy Scouts and Hurley.

    But make an open invitation to the public, a group protected by civil rights, and it is too late to pull out a civil rights-related test or requirement the responding invited customer’s must meet to actually buy the service.

    There is no right to hold the invited public to a religious standard of a belief they don’t share.

    Can’t sell custom wedding cakes to the public while respecting their civil rights the solution is obvious: don’t offer the public custom wedding cakes. Can only sell to people of certain beliefs, then operate a private membership business.

    Free speech is not an excuse in this case anymore than it would be for someone with racial, ethnic or any other civil rights related prejudices. The business knew the law before choosing to make the invitation of sale and made it anyway. No ‘compelled speech’, just expecting a business to operate legally.


  3. Thanks for the comments. These two comments show the extremes at the range of views. With respect to the second comment, the fact that a law exists does not make it constitutional. Businesses are entitled to some first amendment rights; they do not have to comply with a law that is unconstitutional. The free exercise claim isn’t being discussed here, so those cases with lower constiutional standards aren’t relevant. With respect to the first person’s comment, the cake may not be speech. This is a hard cause, but those on both sides think the case is easy.


    1. “A cake made for a same sex “marriage” is, in and of itself, a message.”

      Obviously not if the ‘message’ it contains is indistinguishable from any contrary ‘message’ to any observer.

      The notion that a custom made product is somehow more an endorsement absent any other specific quality doesn’t make sense.

      The dinner rolls I buy from the bakery off the shelf that look similar to the ones I could custom order are no more or less an endorsement of my Thanksgiving dinner than the other, they both came from the same bakery.

      It seems obvious that the real complaint here is the existence of civil rights laws at all that say for certain classes of quality there can be no legal discrimination between the classes members in the public arena and that such treatment is a right.

      Tough. Until such time that civil rights are found unconstitutional they can be recognized as per the 9th and 10th amendment’s and enter into the mix of balancing our rights in a pluralistic society.

      Masterpiece Cakeshop had two locations and did over 200 wedding cakes annually not even counting all the other decorated cakes and baked goods at the time of the infraction. The chances Jack Phillips was the ‘artist’ making 4 wedding cakes a week is virtually nil – there were others doing similar work. If he didn’t want to be involved then let others bake, decorate, and deliver the cake. Heck, take the day off just to be sure. It is the business with the obligation to respect civil rights, not any particular person’s.

      The business freely invited the public to come buy custom wedding cakes which they can accept with an expectation their civil rights would be respected as required by law.

      Don’t make offers to the public to do something if you know you can’t in conscience follow through legally is simple and obvious solution here.


  4. I don’t agree that the Colorado Appeals Court ruling was paradoxical or circular because I think the claim “if the speech is compelled through Colorado law, it does not express a message, and it is not compelled expression” is not an accurate summary of the decision. Instead the Court said, “to the extent that the public infers from a Masterpiece wedding cake a message celebrating same-sex marriage, that message is more likely to be attributed to the customer than to Masterpiece.” The Court could have done a better job supporting this argument by noting that in FAIR, SCOTUS reasoned, “We have also in a number of instances limited the government’s ability to force one speaker to host or accommodate another speaker’s message […] The compelled-speech violation in each of our prior cases, however, resulted from the fact that the complaining speaker’s own message was affected by the speech it was forced to accommodate.”


    1. Thanks for this comment! I agree that the FAIR case will be essential to whatever the verdict in Masterpiece Cakeshop. I thought the opening brief did a decent job distinguishing by saying that in FAIR, the universities had to accommodate with conduct (allowance on campus) not actual speech. I will blog more later in the series about how FAIR should be used in this case.


      1. I’m not persuaded by how the brief distinguished FAIR even though I agree SCOTUS reasoned the schools were not accommodating speech.

        SCOTUS *first* set out the criterion that “The compelled-speech violation in each of our prior cases, however, resulted from the fact that the complaining speaker’s own message was affected by the speech it was forced to accommodate.” SCOTUS then concluded that this criterion was not met because “In this case, accommodating the military’s message does not affect the law schools’ speech, because the schools are not speaking when they host interviews and recruiting receptions.”

        Thus, the fact the schools were accommodating conduct and not speech is not sufficient to distinguish FAIR. Masterpiece still needs to show that its accommodation of speech affects Masterpiece’s message.


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