The opening brief and several amicus briefs have been filed in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  In the upcoming term, the Supreme Court will decide whether a baker’s refusal to create custom-designed cakes for same-sex weddings is protected by the First Amendment.  Amici filing briefs include Cake Artists, who argue that cake design is as expressive as other forms of art, and thus is as deserving of free speech protections.  Several amicus briefs filed by religious and civil rights leaders argue that the belief in marriage as a union between a man and a woman is not akin to “holding racist views about marriage.”

Last week, I blogged about the free speech arguments articulated in Masterpiece Cakeshop and owner Jack Phillips’s opening brief.  In this post, I will address their free exercise arguments.  Future posts will follow the case through the briefing, oral argument, and opinion – tackling the legal frameworks and precedents that will be most controlling on this case.

Since Employment Division v. Smith, laws that are neutral and generally applicable do not violate the Free Exercise Clause of the First Amendment.  Smith makes sense.  A religious practitioner cannot argue that she is exempt from laws banning arson, for example, simply because her hypothetical religion commands setting fires to buildings.   A law is unconstitutional as a violation of free exercise rights only if the law targets religious practices or displays animus on the basis of religion in some way.   Laws prohibiting conduct in a way that incidentally burdens religion are constitutional, so long as the laws apply to everyone equally and do not purposely target religion.

Cases like Burwell v. Hobby Lobby Stores, where the Supreme Court held that portions of the Affordable Care Act requiring health insurance coverage of contraception cannot be applied to closely held companies, are not directly applicable to Masterpiece Cakeshop.  The Affordable Care Act, as a federal law, must satisfy the federal Religious Freedom Restoration Act (RFRA), another federal law which provides greater protections for religious liberty than does the Free Exercise Clause.  RFRA is not applicable to Colorado’s state anti-discrimination laws, and thus Hobby Lobby does not control this case.

Instead, Masterpiece Cakeshop must argue that Colorado’s public accommodations law, which required Jack Phillips to design and sell wedding cakes to same-sex couples if he sells to opposite-sex couples, is not neutral and generally applicable.   In that case, Colorado’s law would violate the Free Exercise Clause.  Phillips’s argument is that the Colorado Civil Rights Commission applies its public accommodations law to “target Phillips’s religious beliefs for adverse treatment.”  In that instance, this case would be governed not by Employment Division v. Smith, but by Church of Lukumi Babalu Aye v. City of Hialeah.  In Lukumi, a town passed a law banning “animal cruelty,” right after learning about the move of a Santeria church, which practices animal sacrifice, into the town.  Under the town’s law, animals could not be killed and eaten as part of a religious ritual, but the law made an exception for food establishments.  Because the town of Hialeah targeted religious practices for worse treatment than food establishments engaged in similar practices, the town’s animal cruelty law violated the Free Exercise Clause and was struck down.

Phillips relies on the fact that the Commission does allow cake artists to refuse to sell cakes if a religious customer asks for a Bible quote that denounces homosexuality.   The Commission does not deem this refusal to quote anti-gay Bible passages unlawful discrimination on the basis of religion – something forbidden by Colorado public accommodations laws.  Yet, the Commission deems it discrimination on the basis of sexual orientation for Phillips to refuse to create cakes celebrating same-sex marriage.  This distinction is due to the fact that, according to Phillips, “both the Commission and the court below regarded criticism of same-sex marriage as offensive, while dismissing any suggestion that support for same-sex marriage might be offensive to some.”   Further, the Commission applies its public accommodations law in a way that merges status and conduct.  Phillips is happy to sell to the LGBTQ community regardless of status; he seeks only to not involve his cakes in conduct that offends his religious beliefs.  This status/conduct distinction did not satisfy Colorado’s Commission, targeting Phillips’s ability to refuse to participate in something he considers an inherently religious practice.

Phillips is correct that, under Colorado law, “supporters [of same-sex marriage] get a pass, but opponents get punished.”  Phillips’ religious liberty argument, however, requires him to demonstrate that this treatment burdens religious beliefs more than it burdens secular conduct, or that the Commission is hostile to Phillips’s religion.  The Commission has articulated that “[f]reedom of religion and religion has been used to justify all kinds of discrimination throughout history.”  However, this statement can be interpreted to mean that Colorado will not tolerate discrimination, even if undertaken in the name of religion.  The statement likely does not mean that the Commission is opposed to the discrimination because of its religious origin.

Phillips’s most compelling free exercise argument is that the Commission has an “anti-religious application” of its public accommodations laws.  The Commission “allows any expressive professional to refuse to create speech of that they deem objectionable, even if those messages are closely associated with a customer’s protected status,” but denies those like Phillips the ability to adhere to their religious practices.  Artistic and expressive professionals with a religious objection to same-sex marriages cannot create their art.  These artists are burdened more than cake artists who refuse to create other types of expression, even if consumers are harmed by those refusals.

The merits of Phillips’ free exercise claim appears to depend heavily on his free speech claim.  Colorado’s public accommodation law can be described as requiring those who provide goods or services to the public to sell to all, regardless of gender, race, sexual orientation, etc., but makes an exception for expression sellers find offensive.  That law appears to be a neutral law of general applicability.  Thus, Phillips’s free exercise claim requires that he demonstrate that his cake making is expression, and is inherently expressive even without a particular message on the cake.   If the cake is expressive, Colorado may be placing impermissible burdens on Phillips’s religious expression in a way it is not burdening others who refuse to sell cakes with particular messages.  If the cake is not speech or expressive conduct, Colorado can apply its public accommodations law to Phillips in a constitutional way.  Then, Phillips is being held to the same standard as everyone else – he cannot discriminate in what he sells on the basis of certain status characteristics.

To my mind, the free exercise claim, and Phillips’s alternative hybrid rights claim based on a combination of a compelled speech claim with a religious liberty claim, rises and falls with the free speech claim.  Phillips’s free exercise claim cannot exist if his cake isn’t expression, and his free speech claim is bolstered by the free exercise claim.   Other amicus briefs discuss how Colorado’s law mandates “forced participation in a religious ceremony,” an argument to which I will return in later posts.