By Jay Kaplan
The U.S. Supreme Court finished hearing arguments this week in the case of a Colorado business owner who refused to sell a wedding cake to a same-sex couple. How the Court rules on this case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, could have far reaching consequences: Will a commercial business have the legal right to not only deny service to same-sex couples, but to anyone because of who they are?
The ACLU represents Dave Mullins and Charlie Craig, who began planning their wedding in 2012. The couple, along with Charlie’s mom, went to the Masterpiece Cakeshop to order a wedding cake. When the owner learned that it was Dave and Charlie getting married, he refused to sell them a wedding cake, claiming it violated his religious beliefs.
It has long been the law of the land that when a business opens its doors to the public it must serve everyone. Colorado law is no different. In fact, it states that a business cannot pick and choose who it serves based on race, sex, religion, disability and sexual orientation and gender identity.
Dave and Charlie filed a discrimination complaint with the Colorado Civil Rights Commission and they ruled that Masterpiece Cakeshop violated Colorado law. The Colorado state courts upheld that decision, and Masterpiece Cakeshop appealed to the U.S. Supreme Court.
Masterpiece Cakeshop argues that their constitutional rights to free speech and religion allow businesses with an expressive or creative element to refuse service to same-sex couples. Otherwise, the bakery attorney claims it would be forced to endorse something it does not support.
At oral arguments, at least five justices were skeptical of the Masterpiece Cakeshop’s free speech argument. Justice Breyer expressed concern that this theory would allow all businesses to make this same free speech claim as justification for discrimination. He observed that a decision in favor of Masterpiece Cakeshop would not only impact civil rights laws for the LGBT community, but laws that prohibit discrimination on the basis of race, sex, national origin and religion.
Justice Kennedy’s questioning lead to an admission by the United States Solicitor General that a victory for Masterpiece Cakeshop would allow any bakery to post signs that they do not make cakes for gay weddings. Kennedy said this would be an “affront to the gay community.”
While Kennedy did not appear to be persuaded by Masterpiece Cakeshop’s free speech argument, he voiced concern about the bakery’s freedom of religion claim. His questions pointed out that there may have been anti-religious bias in Colorado Civil Right’s Commissions treatment of Masterpiece Cake Shop, and the court may consider sending this claim back to the Commission to reevaluate
In an equally divided court, this landmark decision likely will rest with Justice Kennedy. Hopefully his concerns that a victory for Masterpiece could harm LGBT people will prevail. But we will have to wait until the end of June when the Court is expected to issue its decision.