Amona Al-Refaei, Associate Member, University of Cincinnati Law Review
On Dec. 5, 2017, the Supreme Court heard arguments about whether compelling a bakery owner to create a wedding cake created an expression that violated his freedom of speech or free exercise clauses of the First Amendment. In 2015, the Court of Appeals of Colorado unanimously affirmed the Colorado Civil Rights Commission decision to rule against Masterpiece on summary judgment, finding the bakery discriminated against a same-sex couple because of sexual orientation in violation of state law. The court also found the application of Colorado Anti-Discrimination Act (CADA) did not infringe on the bakery’s freedom of speech or free exercise of religion.
In its decision on the issue, the Supreme Court should find CADA does not infringe on the freedom of speech or the free exercise of religion and the state has a legitimate interest in eliminating discrimination in places of public accommodation. The Colorado public accommodations law can regulate communicative conduct because the government has an important interest that is unrelated to the suppression of the message and the impact on the communication is no more than necessary to achieve the government’s purpose. The law does not infringe on the free exercise of religion because it is generally applicable, does not discriminate on the basis of religion, and covers a broad spectrum of conduct.
First Amendment Rights
The First Amendment prohibits laws “abridging the freedom of speech.” The freedom of speech protected by the First Amendment includes the “right to refrain from speaking” and prohibits the government from telling people what they must say. The government cannot “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion” by forcing individuals to publicly disseminate its own ideological message. The government also cannot require “the dissemination of an ideological message by displaying it on [an individual’s] private property in a manner and for the express purpose that it be observed and read by the public.”
Some forms of conduct are symbolic speech and deserve First Amendment protection. First Amendment protection only extends to conduct that is “inherently expressive.” In determining whether conduct is “inherently expressive,” courts must determine whether “[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.” The Supreme Court has recognized expressive conduct in several cases. The party asserting conduct is expressive bears the burden of demonstrating the First Amendment applies, and the party must advance more than a mere “plausible contention” that its conduct is expressive.
The First Amendment also states “Congress shall make no law . . . prohibiting the free exercise of religion.” The Supreme Court concluded the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law prescribes (or proscribes) conduct that his religion prescribes (or proscribes).” Neutral laws of general applicability need only be rationally related to a legitimate government interest in order to survive a constitutional challenge. But, if the law is not neutral or generally applicable, it “must be justified by a compelling government interest” and must be narrowly tailored to advance that interest. A law is not neutral if the object of a law is to infringe upon or restrict practices because of their religious motivation. A law is also not generally applicable when it imposes burdens on religiously motivated conduct while permitting exceptions for secular conduct or favored religions.
Facts of Mullins v. Masterpiece Cakeshop
David Mullins and Charlie Craig visited Masterpiece Cakeshop in 2012 to order a cake to celebrate their same-sex wedding. The bakery owner declined, telling them that he does not create wedding cakes for same-sex weddings because of his religious beliefs. He informed them he would be happy to make and sell them any other baked goods. Mullins and Craig left without discussing any details of their wedding cake with the bakery owner. The owner believed that decorating cakes is a form of art, that he can honor God through his artistic talents, and that he would displease God by creating cakes for same-sex marriages. At the time, Colorado did not recognize same-sex marriages, so Mullins and Craig planned to marry in Massachusetts and then celebrate with friends in Colorado.
After being denied service, Mullins and Craig filed complaints with the Colorado Civil Rights Division contending the Masterpiece Cakeshop violated the Colorado Anti-Discrimination Act (CADA) by discriminating against them in a place of public accommodation because of their sexual orientation. A “place of public accommodation” is “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public, including but not limited to any business offering wholesale or retail sales to the public.” Masterpiece admitted the bakery is a place of public accommodation and that they refused to sell Mullins and Craig a cake because of their intent to engage in a same-sex marriage ceremony. The Colorado Civil Rights Commission determined the bakery illegally discriminated against Mullins and Craig when it refused them service and required Masterpiece to take remedial measures and file quarterly compliance reports for two years with the Division.
Colorado Anti-Discrimination Act
The Colorado Anti-Discrimination Act (CADA) prohibits public accommodations from refusing service based on characteristics like race, religion, or sexual orientation. CADA states, “It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of . . . sexual orientation . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation . . .”
CADA defines “sexual orientation” as “an individual’s orientation toward heterosexuality, homosexuality, bisexuality, or transgender status or another individual’s perception thereof.” The Court of Appeals of Colorado previously held to prevail on a discrimination claim under CADA, plaintiffs must prove that, “but for” their membership in an enumerated class, they would not have been denied the full privileges of a place of public accommodation. It is sufficient that plaintiffs show the discriminatory action was based in whole or in part on their membership in the protected class.
State Court Holding in Mullins
The Court of Appeals of Colorado in Mullins v. Masterpiece Cakeshop held Masterpiece Cakeshop was properly found to have violated CADA when it refused to make a wedding cake for a same-sex wedding. The order did not violate the First Amendment right to free exercise of religion. As a result of the close correlation between the act of same-sex marriage and the couples’ orientation, the refusal was because of the potential customers’ sexual orientation. CADA does not impede the free exercise of religions because it is both neutral and generally applicable. The law does not compel the maker to support or endorse any particular religious views. CADA only prohibits the maker from discriminating against potential customers on account of their sexual orientation.
The court also held the cease and desist order did not compel speech in violation of the First Amendment because compelling the bakery to sell wedding cakes to same-sex couples, if it wished to serve heterosexual couples in the same manner, was not sufficiently expressive. In order for conduct to be sufficiently expressive, the conduct must convey a particularized message and that a reasonable observer would both understand the message and attribute it to the speaker. Designing and selling a wedding cake to all customers free of discrimination is not sufficiently expressive because it does not convey a celebratory message about same-sex weddings likely to be understood by those who view it. The court noted there was nothing in the record to support the conclusion that a reasonable observer would interpret the maker’s providing a wedding cake for a same-sex couple as an endorsement of same-sex marriage, rather than a reflection of its desire to conduct business in compliance with Colorado’s public accommodations law.
CADA Does Not Violate First Amendment Rights
The Colorado Anti-Discrimination Act does not violate the bakery owner’s freedom of speech because the government has an interest unrelated to the suppression of the message and the impact on the communication is no more than necessary to achieve the government’s purpose. If the Court determines the Commission’s order did compel expressive conduct, the question to determine whether the freedom of speech was infringed is whether the government has sufficient justification for regulating the conduct. However, the government can regulate communicative conduct if it has an important interest unrelated to the suppression of the message and if the impact on the communication is no more than necessary to achieve the government’s purpose. In Masterpiece, the government’s interest is in eliminating discrimination in places of public accommodation. The bakery’s willingness to serve same-sex couples items other than wedding cakes does not satisfy the state’s interest because the purpose of the law is to ensure that all customers are treated equally. So if the bakery is willing to create wedding cakes for some customers, it must do so for all customers regardless of sexual orientation.
Moreover, even if the Court upholds CADA, Masterpiece Cakeshop can express its views on same-sex marriage and it may disassociate itself from its customer’s viewpoints. As the Court of Appeals of Colorado noted, CADA does not prevent Masterpiece from posting a disclaimer in the store or on its website indicating that the provision of its service does not constitute an endorsement or approval of conduct protected by CADA. The bakery may argue that the statute compels it to participate in a ceremony that it feels is immoral. But, CADA requires the bakery to provide the same services for all customers and Masterpiece could post a message indicating that CADA requires it not to discriminate on the basis of sexual orientation and other protected characteristics. Such a message would likely have the effect of disassociating Masterpiece from its customers’ conduct.
Creating a wedding cake is not expressive conduct by Masterpiece because it is not likely that viewers of the wedding cake will interpret the cake as an endorsement of the same-sex marriage. Moreover, even if there was expressive conduct here, a reasonable person would not consider baking a cake to be a religious act because the viewer is more likely to attribute the message to the customer rather than to Masterpiece. Additionally, because Masterpiece is a for-profit bakery, reduces the likelihood that a reasonable observer would believe the bakery supports the message expressed in its finished product.
CADA does not infringe upon the free exercise of religion because it is neutral and generally applicable. CADA is generally applicable and does not discriminate based on religion, but it exempts certain public accommodations that are principally used for religious purposes, such as churches, synagogues, and mosques. And CADA does not exempt secular conduct from its reach. CADA is neutral because it forbids all discrimination based on sexual orientation regardless of its motivation. CADA prohibits Masterpiece from denying services to customers based on their sexual orientation if it would offer the same services to the general public. Moreover, CADA does not infringe upon or restrict practices because of their religious motivation. And CADA generally applies because it does not impose burdens on religiously motivated conduct while permitting exceptions for secular conduct or favored religions. When a business is a place of public accommodation the government has an interest in preventing discrimination which allows the government to compel business owners to provide the same services to all customers even if it may go against their religious beliefs.
The Court of Appeals of Colorado in Mullins was correct in holding that preparing a wedding cake for same-sex weddings does not necessarily involve expressive conduct. Designing and selling a wedding cake to all customers will not result in others understanding that the creator of the cake endorses or supports same-sex weddings.
CADA requires Masterpiece not to discriminate against potential customers and even if such conduct is compelled by the government, it is not sufficiently expressive to warrant First Amendment protections. The Supreme Court should reach the same result because CADA does not impede the free exercise of religions since it is both neutral and generally applicable. As long as CADA can pass a rational basis standard of review, it should be upheld. The state has an interest in eliminating discrimination in places of public accommodation. Without, CADA, businesses could discriminate against potential customers based certain characteristics, including their sexual orientation.
 Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, http://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ (last visited Feb. 4, 2018).
 Mullins v. Masterpiece Cakeshop, Inc., 370 P.3d 272, 276 (Colo. App. 2015).
 USCS Const. Amend. 1
 Wooley v. Maynard, 430 U.S. 705, 714 (1977).
 West Viriginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943).
 Wooley, 430 U.S. at 713.
 United States v. O’Brien, 391 U.S. 367, 376 (1968) (holding that the public burning of draft cards during anti-war protest is a form of expressive conduct).
 Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 65-66 (2006).
 Texas v. Johnson, 491 U.S. 397, 404 (1989).
 United States v. Eichman, 496 U.S. 310, 312-19 (1990) (burning of the American flag in protest of government policies); Johnson, 491 U.S. at 399 (burning of the American flag in protest of Reagan administration and various corporate policies).
 Clark v. Cmty. Of Creative Non-violence, 468 U.S. 288, 293 (1984).
 USCS Const. Amend. 1
 Employment Div. v. Smith, 494 U.S. 872, 879 (1990).
 Id. at 883.
 Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993).
 Id. at 534.
 Mullins, 370 P.3d at 276.
 Id. at 277.
 Colo. Rev. Stat. § 24-34-601(1), C.R.S. 2014.
 Mullins, 370 P.3d at 277.
 Colo. Rev. Stat. § 24-34-601(2)(a), C.R.S. 2014.
 Colo. Rev. Stat. § 24-34-301(7), C.R.S. 2014.
 Tesmer v. Colorado High School Activities Assoc., 140 P.3d 249, 254 (Colo. App. 2006).
 Mullins, 370 P.3d at 276.
 Id. at 293.
 Id. at 281.
 Id. at 293.
 Id. at 291.
 Id. at 286.
 Id. at 285.
 Id. at 286.
 Id. at 286.
 Id. at 287.
 Johnson, 491 U.S. at 407.
 Mullins, 370 P.3d at 288