1AP’s What You Need to Know: Masterpiece Cakeshop

The Supreme Court has scheduled oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission for December 5th. 1AP has previously discussed the case here. This case is about more than whether Jack Phillips should bake a cake. It is about whether the government can (and, more philosophically, should) compel a person to create something in violation of his or her religious beliefs without violating the Free Exercise or Establishment Clauses of the 1st Amendment. The same protections that allow same-sex couples the benefit of marriage also protect dissenters’ religious liberty. The government should not interfere in individual’s identities and how they live out those identities in public without an absolutely compelling reason.  


In a brief filed on behalf of Christian Legal Society et. al, two of the most respected religious liberty litigators in the country, Professors Doug Laycock and Thomas Berg argue that:

  • Both “Religious believers and same-sex couples argue that a fundamental component of their identity, and the conduct that flows from that identity, should be left to each individual, free of all nonessential regulation.”
  • “Both religious believers and same-sex couples feel compelled to act on those things constitutive of their identity.”
  • “Both religious dissenters and same-sex couples seek to live out their identities in all aspects of their lives, including those that are publicly visible.”


This case reaches the court at a time when some LGBT rights supporters and some religious freedom supporters see this conflict as zero-sum.  However, these conflicts are best responded to with a balancing test that addresses all the interests of those whose rights are in conflict. Indeed, in the Obergefell decision, Justice Kennedy affirmed that “the Constitution promises liberty to all within its reach,” allowing “persons, within a lawful realm, to define and express their identity.”

The Supreme Court held that same-sex marriage was the law of the land in 2015; however, this did not–and will not–change the religious definition of marriage for millions of faithful Americans. This means that there are some people who feel that in good conscience they cannot participate in a same-sex wedding.


It’s important to note that bigotry and unjust discrimination against LGBT community is wrong and has no place in a civil society.  Professors Laycock and Berg, and the brief’s many signatories, make the case that government has a role in ending all kinds of unjust discrimination and have actively worked to end it. When the Utah legislature passed a law in 2015 that protected LGBT people from discrimination in housing and employment, people of faith actively supported the bill and played a key role in securing its passage.


In the Masterpiece case, plaintiff Jack Phillips, like many Americans, believes that a wedding is a religious ceremony, and that a same-sex wedding is religiously prohibited. The state of Colorado, through the Colorado Civil Rights Commission, required that Jack Phillips assist in celebrating such an occasion.


Jack Phillips’ choice was to violate the law or violate his conscience. Jack Phillips chose a third way–he stopped creating wedding cakes altogether. Colorado’s dubious interest in regulating religious events–in this case weddings–is much weaker than Jack Phillips’ right to exercise his religious beliefs, which compel him to abstain from participation in certain events.

There are two religious freedom clauses in the First Amendment. The Establishment Clause prevents the government from compelling individuals or groups to follow a particular religion, or from (dis)favoring any one religion. The Free Exercise Clause protects the right of individuals and groups to live out their faith with minimal government interference. The state of Colorado’s actions in this case violate both.


When identifying whether a burden on religious liberty exists, what matters is the understanding of the person claiming the burden. Even though some people may not think of weddings as inherently religious, Jack Phillips does. His understanding is based on Christian teachings held by millions of Americans, so there is no reason to doubt his sincerely-held claim. By forcing Jack Phillips to participate in a religious ceremony, the state of Colorado violated the Establishment Clause.


Colorado violated the Free Exercise Clause by inconsistently applying its Anti-Discrimination Act against certain religious beliefs. The Supreme Court has held that a law must be generally-applicable and religion-neutral to withstand constitutional scrutiny.

The state’s actions are not neutral because other bakers in a similar situation won their case. Jack Phillips lost in the lower courts on the basis of his belief. In the other case cited by Professors Laycock and Berg, gay bakers refused to make a cake denouncing same-sex marriage. The state chose to uphold the conscience claims of those bakers even though Colorado nondiscrimination law makes it illegal to refuse service to the conservative Christian who requested the cake. In that case, the state found the conscience claims of the bakers to be more compelling than the insult suffered by the customer. Furthermore, the law is not religion-neutral because it only regulates religious conduct; analogous secular conduct is left alone. Colorado cannot argue that it has a compelling interest to require Jack Phillips to serve a same-sex wedding, especially when it does not equally regulate other bakers. In weighing the interests and harms in this case, the harm to Jack Phillips greatly outweighs the state’s questionable interest in regulating religious ceremonies.


Media coverage and advocacy groups have and will continue to wildly misrepresent arguments on both sides of the case. However, part of living in a diverse, pluralistic country is learning to live with your neighbors. Using the force of government to remove those with whom we disagree from the public sphere is not the way to do that.

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