Not Self-rising

Michael Peabody July/August 2018

This summer the U.S. Supreme Court is expected to issue a decision in a difficult case that pits the free exercise of religion and free speech rights of a wedding cake maker against the rights of a same-sex couple to be accommodated in the marketplace. The couple demands the cake; the baker refuses because he thinks he will be sinning. The question before the Court is if the state of Colorado can or must require him to bake and decorate the cake.

Thousands of pages of briefs have been generated on the various aspects of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, and we can highlight some of the key issues. Given the sheer volume of writing on the case, there is no way that this article can address every case, legal argument, or hypothetical analogy. But here are several of the key issues that may provide some clues as how the Court might try to untangle this surprisingly complex case.

Free Exercise Argument, Jurisdiction, and Precedent

First, this is a Colorado case brought under state law. The baker violated a Colorado state anti-discrimination law, as interpreted by the state’s civil rights commission. If the Court upholds the state law and the way that the commission interpreted it, the decision does not automatically affect the rights of business owners in other states.

Phillips raises two primary defenses—first, that requiring him to bake the cake violates his free exercise of religion. Second, that making him talk through baking the cake violates his right to freedom of speech.

When it comes to the free exercise of religion, the Court has ruled that states have broad discretion to enact laws that apply to everyone, legally phrased as a “neutral law of general applicability.” In 1990 the late Justice Antonin Scalia wrote the majority opinion in Employment Division v. Smith, which said the state of Oregon could deny unemployment benefits to Native Americans who had used peyote during religious ceremonies. Scalia argued, in essence, that the employees had tried to use religion as an excuse to get around the neutral, generally applicable ban on possession of peyote. Scalia stated that allowing an individual to be exempt from such laws because of religion would permit him, “by virtue of his beliefs, ‘to become a law unto himself.’” Requiring the state to come up with a “compelling interest” before refusing an exemption “would lead toward anarchy,” Scalia wrote.

Scalia apparently did not think highly of the rights of a religious minority (coming close to calling them legal anarchists), though at the time alarm bells went off regarding the impact on a wide variety of “mainstream” issues. Caution is wise when a problematic decision is defended with a “What’s the worst that can happen?”

In 1993 Congress sought to overturn the Supreme Court’s opinion in Smith by reinstating the “compelling state interest” test that the Court previously propounded in 1963 in Sherbert v. Verner. The resulting Religious Freedom Restoration Act (RFRA) flew through Congress, and was signed into law by President Clinton. Sherbert involved a Seventh-day Adventist who was denied unemployment benefits when she was fired for refusing to work on the Sabbath (sunset Friday to sunset Saturday). The Court had held that the free exercise clause required that the government demonstrate two things—first, a compelling interest in making a law, and second, that the resulting law was narrowly tailored to advance that interest.

In 1997, in Boerne v. Flores, the Court ruled that while Congress could restrict its own legislation that infringed on the free exercise of religion, it did not have the power to apply RFRA to the states.

Fast-forward to 2014, when the Supreme Court applies RFRA in Burwell v. Hobby Lobby and rules that the closely held private company with tens of thousands of employees does not need to comply with the contraception mandate of the federal Affordable Care Act because it offends the free exercise of religion rights of the owners.

And, at the same time, while the owners of Hobby Lobby are free to ignore a federal law that violates their beliefs, we have Mr. Phillips, the owner of a small business, who is beholden to the laws of the state of Colorado. If RFRA applied to the states, Mr. Phillips would easily win his right not to make the cake.

If the Court makes a free exercise ruling on the right not to make a wedding cake for a same-sex couple, it would have to overturn both Smith (1990) and Boerne (1997) unless it could otherwise determine that Colorado made a mistake in how it applied its law. Interestingly, the federal government has not readily pushed for recognition of sexual orientation as a Title VII right, perhaps because state laws have much power regarding enforceability against free exercise claims.

If the Court finds that Colorado has the right to compel Mr. Phillips to make the cake and that it does not have jurisdiction to address the state-level free exercise dispute, then the case will likely apply only to jurisdictions that meet two criteria—first, they do not have state-level RFRAs that address the issue directly, and second, they have state anti-discrimination laws. Under that scenario, Mr. Phillips would need to convince the Colorado legislature to carve out an exception for him in state law if he wished to continue to bake only those cakes that he felt complied with his religious beliefs.

Sincerity of Belief

In discussing the case, some have said that they do not believe that Mr. Phillips correctly interpreted the Bible when it comes to whether or not he would be theologically complicit with same-sex marriage if he chose to bake a cake for a same-sex wedding.

While the question “What would Jesus do?” is relevant to practicing Christians as they contemplate the issue, they should not anticipate that the state would establish their interpretation as the correct view. That would violate the establishment clause. While people can debate how they would personally respond, this rationale should not be attributed to the government.

Last year the U.S. Court of Appeals for the Fourth Circuit issued a ruling in the case of an employee of an energy company who had refused to submit to a biometric hand scan for religious reasons (EEOC v. Consol Energy, Inc., 860 F.3d 131 [4th Cir. 2017]). The employee, who said he was “a lifelong evangelical Christian,” believed that participating would give him the apocalyptic “mark of the beast” even though his pastor disagreed with his interpretation.

The EEOC sued the employer, alleging that the employer’s failure to accommodate the employee’s religious beliefs by using an alternative to the hand scan violated Title VII of the Civil Rights Act of 1964. At trial the jury ruled in favor of the EEOC, and the Fourth Circuit affirmed the decision.

The Fourth Circuit said that theological correctness or general acceptance of a belief was not the criteria for determining whether the belief was legitimate. Instead, the Fourth Circuit said that beliefs should be evaluated only for sincerity. The court wrote, “It is not [the employer’s] place as an employer, nor ours as a court, to question the correctness or even the plausibility of [the employee’s] religious understandings” (Consol, 860 F.3d at 142). (See also Kaite v. Unemployment Compensation Board of Review [PA Commonwealth Court, Nov. 29, 2017].)

The Fourth Circuit also said that the fact that the pastor disagreed with his interpretation was irrelevant: “[The employee’s] religious beliefs are protected whether or not his pastor agrees with them. . . . So long as there is sufficient evidence that [the employee’s] beliefs are sincerely held . . . and conflict with [the employer’s] employment requirement, that is the end of the matter” (Consol, at 142, 143).

If the Supreme Court decides to adopt this line of reasoning, and the Court’s precedent suggests it will, then the analysis of Mr. Phillips’ religious beliefs will turn on whether or not his beliefs are sincere. If they are sincere, the analysis will end there.

Colorado’s Different Treatment of Cakes—Bad Cakes and Good Cakes

Jack Phillips’ refusal to make a wedding cake is not the only Colorado cake case to gain media attention. In 2016 the Colorado Civil Rights Division ruled that Majorie Silva, the owner of Azucar Bakery in Denver, had the right to refuse to make two cakes with anti-gay imagery and derogatory language.

In 2014 Silva told the customer that she would sell him icing and a pastry bag so he could decorate the cake however he wanted, but because she had refused to do the decorating, she was hit with a religious discrimination complaint. She said that the reason she had refused was that the customer’s request was based on “derogatory language and imagery” instead of a religious argument.

Some who are defending Phillips say that this represents an inconsistent result, while others can credibly argue that there is a significant difference between a celebratory and a derogatory cake. However, Douglas Laycock and Thomas Berg have argued in their amicus brief that the state’s reasoning in the two cases is “flatly inconsistent.” They continue: “This differing treatment cannot be explained on the ground that the message of the other bakers’ cakes would be explicit and the message of petitioner’s cake implicit. That would not matter to the court’s stated logic, and either way, petitioner would be helping to celebrate a wedding he believes is sinful.”

Because the state addressed the two cakes using different logic, Laycock and Berg argued, the Colorado law “as applied, violates the free exercise clause. It is neither religion-neutral nor generally applicable.”

They continue: “The question is whether the unregulated ‘nonreligious conduct’ . . . endangers these [state] interests in a similar or greater degree” than the regulated religious conduct. Here the unregulated conduct—refusing to provide a cake denouncing same-sex marriage for a conservative Christian customer—endangers the state’s interests as much as the regulated conduct: refusing to create a cake celebrating same-sex marriage for a same-sex couple. Unwillingness to promote a protected group’s message either is discrimination or . . . is not. Sending a customer elsewhere because of disagreement with his requested message inflicts the same inconvenience, and the same insult, whether the message about same-sex marriage is celebration or condemnation.”

There may, however, be a sincerity argument in this approach that is being overlooked. If the purpose of requesting a derogatory cake is not, in fact, religious, but was intended to stir up the “culture wars,” there might be a good reason for the disparate results.

Free Speech Argument

The Supreme Court could avoid the debate over whether there is a “free exercise” difference between derogatory cakes and celebratory cakes, and avoid addressing Smith and Boerne by ruling on a free speech basis.

Applying a free speech exception to an anti-discriminatory law may be much broadly applied to any secular discrimination against a protected class.

The Court could also take a “hybrid rights” approach by applying free speech analysis to only religious speech, but that could be problematic as well.

The Court would also have to decide whether the creation of the cake was “expressive conduct” or simply an activity, and may have to go deeper into an analysis of what the creation and placement of a wedding cake entails. As it stands, Phillips contends that the state is compelling him to speak, while the state of Colorado contends that they are asking him to provide the same service for a same-sex couple that he does for other people.


In 2014 the Supreme Court debated whether to hear the Elane Photography case, involving a New Mexico photographer who refused to photograph a same-sex wedding, but in that case, the photographer’s attorneys had alternated between free speech and free exercise claims through the initial trial and appeals processes, and the issue was somewhat muddy. Masterpiece Cakeshop provides a cleaner legal history with a more specific set of issues that have been consistently argued.

If the Court finds against Phillips, it will return the issue to the states, where legislatures will decide what kinds of exemptions may be allowed. The Smith decision gave the states the jurisdiction to decide on how to adapt their interpretations of the free exercise clause, and although Scalia seemed to have regretted the decision that was intended to initially apply to outliers but has had a much more mainstream effect, it created a precedent that will be difficult to unseat. While the free speech argument could have a much broader application with its own set of unintended consequences, it would be an “easier” answer for the Court.

The decision to be issued this summer may have only a very narrow result affecting wedding cake bakers in Colorado, or it could have very broad implications for free exercise and free speech nationwide.

To read the many briefs filed on all sides, visit

Article Author: Michael Peabody

Michael Peabody is an attorney and founder of Religious Liberty TV. He writes from Los Angeles, California.