The Resurrection of Masterpiece Cakeshop – A Different Free Speech Issue and a Different Legal Landscape

The best case to both test the scope of the Supreme Court’s decision in Masterpiece Cakeshop and to answer its unresolved legal questions is, indeed, a new version of Masterpiece Cakeshop.  Last month, baker Jack Phillips sued the Colorado Civil Rights Commission for another ruling against him and his bakery.  Although Phillips received a narrow win in the original Masterpiece Cakeshop, the free speech claim in this new case is somewhat stronger, and the legal landscape has been altered in Phillips’s favor by the original case.  Because this new case presents a free speech claim that can easily be distinguished from the sale of interchangeable goods and services, a decision in favor of Phillips is unlikely to seriously undermine civil rights and anti-discrimination laws.


In the original Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court held on case-specific grounds that the Commission had displayed religious animus towards Jack Phillips and his bakery in violation of the Free Exercise Clause of the First Amendment.  A few weeks after the Supreme Court’s opinion, the Commission ruled that there was probable cause to believe that Phillips had violated Colorado’s public accommodations laws anew – now, by refusing to make a custom-made cake for Autumn Scardina.  The attorney Scardina wished to celebrate her birthday and the anniversary of her coming out as transgender with a cake that was blue on the outside and pink on the inside.

Again Phillips, as in the original Masterpiece Cakeshop, claimed that he would be happy to sell his cakes to any customer, regardless of sexual orientation or gender identity, but that he refuses to create cakes that express messages contrary to his religious faith.  That argument, grounded mostly in free speech principles, was of questionable legal merit in a case where a blank cake was simply to be used in a same-sex wedding.  The new case, involving Scardina, affords Phillips a stronger First Amendment claim in that Scardina requested a cake with a specific message and purpose that Phillips would not countenance for any customer, regardless of gender identity.  The new case is also potentially easier for Phillips to win because of the changing legal landscape, created by the original Masterpiece Cakeshop.

Left undecided in Masterpiece Cakeshop was whether a custom-made but blank cake, purchased for the wedding of Charlie Craig and David Mullins, was speech, expressive conduct, or simply conduct that does not implicate the Free Speech Clause of the First Amendment.  Instead, as I have blogged about before, Justice Kennedy’s majority opinion noted that Jack Phillips was treated differently by the Commission than other bakers.  However, the concurrences split on what would constitute fair treatment of Phillips.

Justice Gorsuch, who believes that even a blank cake is pure speech subject to the highest constitutional protections, cited the actual example of the Commission’s finding that it was not religious discrimination for a baker to refuse to make a cake with a Bible provision appearing to denounce homosexuality.  Gorsuch argued that because Colorado allowed a different baker to refuse to design a cake with an anti-gay message, Phillips should have been permitted to refuse to create a cake that celebrated a same-sex union.  In contrast, Justice Kagan noted in her concurrence that the Commission should not have allowed its views about which speech is offensive to infect its determinations on whether bakers are allowed to deny certain cake orders.  However, according to Kagan, the Commission might not violate the First Amendment if it had ruled that refusing to sell a blank cake to customers based on their sexual orientation violates Colorado law, even if Colorado bakers are permitted to refuse to sell specific messages on a cake.

Under Justice Kagan’s view, the Commission and Scardina have some force behind their position, if Phillips would design a blue and pink birthday cake for cisgender women but not transgender women.  Then, the Commission can justify its application of its nondiscrimination laws by arguing that Phillips will not sell a pink and blue birthday cake to customers of a particular gender identity, a protected class in Colorado, but would probably happily sell a pink and blue cake to other customers.  In that situation, the Commission may not be treating bakers differently depending on their views.  Plus, if the cake is expressive conduct, it is unlikely a reasonable observer would view a pink and blue cake as celebrating someone’s coming out as transgender.  Ultimately, however, Scardina mentioned why she wanted the cake. Colorado allows other bakers to refuse cakes based on their underlying message, and Phillips was informed of the message.  On the spectrum from a blank wedding cake to a cake with a very particular, written message, the pink and blue cake is somewhere in the middle.  The cake does not express a specific, written message, but Phillips was informed of the message, which is expressed through the design of the cake.

As a result, even under Justice Kagan’s view, which is less favorable to Phillips, there is a good argument that the Commission is now treating Phillips differently than other bakers who refuse to create cakes with messages of which they disapprove.  A claim that the Commission treats bakers differently based on the messages on the cakes they refuse to bake is a solid First Amendment argument, which may not even require resolution of thorny issues involving whether cakes are speech, expressive conduct, or something else.  The Court might not even have to decide if a pink and blue cake expresses a particular message on its own, or if a reasonable observer would take that sort of cake to express a message.  Instead, the Colorado Civil Rights Commission’s enforcement of its public accommodations laws is discriminating against Phillips based on his viewpoint, and based on the viewpoints wished to be expressed on the cakes.  This state action implicates the most fundamental free speech principles.  The Commission’s initiation of a new action against Phillips and its disparate treatment of him may also be based on religious animus, a charge the Supreme Court has already shown itself willing to level against the Commission.  (I thought the religious animus claim against Phillips was weak in the original Masterpiece Cakeshop opinion, but that charge is looking stronger now.)  As a further note, although not evidence of animus by the Commission, Scardina may be placing anonymous orders for a variety of cakes to unnerve Phillips.

Phillips’s lawsuit, filed in federal court, has a long way to go before the Supreme Court may have the opportunity to decide whether or not to review the case.  Unlike the original, which I believe was a poor vehicle for deciding the relationship between First Amendment rights and anti-discrimination laws, the new case involves a cleaner legal issue and an obviously more expressive cake.


7 thoughts on “The Resurrection of Masterpiece Cakeshop – A Different Free Speech Issue and a Different Legal Landscape”

  1. Is it really the case that Gorsuch gave blank cakes full First Amendment Protection? I’m looking at the footnote in Kagan’s opinion where she describes their disagreement. There, it isn’t about whether the cake is blank or not but about whether the baker has (or can) invest a cake with significance or meaning once they know what the cake is for.

    Wouldn’t that part of the argument be the same in this situation?


    1. Gorsuch joined Thomas’ concurrence which gave full First Amendment protection to categorically refusing to create a custom cake, without any knowledge of what the customization will be, because the cake will be used in a same-sex marriage.


      1. I didn’t look at Thomas’s concurrence more recently. If that’s where we are deriving the answer from though, why attribute the view to Gorsuch rather than to Thomas (or to Thomas and Gorsuch)? Gorsuch’s own writings don’t dwell on that point, whatever he decided to join.


  2. Erica said, “The Court might not even have to decide if a pink and blue cake expresses a particular message on its own, or if a reasonable observer would take that sort of cake to express a message” because “the Colorado Civil Rights Commission’s enforcement of its public accommodations laws is discriminating against Phillips based on his viewpoint.”

    How can be Phillips be the victim of viewpoint discrimination if the colors express no message? The only answer I can come up with is that Phillips’ viewpoint is a custom cake which will be used to celebrate coming out as transgender is categorically a message in favor of coming out. But, that’s no different than his position in the original case. So, this case would not provide a different landscape unless the Court tackled whether the colors express a message.


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