I have a forthcoming law review article on free speech protections for the speech involved in this and similar cases around the country: “The Unfinished Masterpiece: Speech Compulsion and the Evolving Jurisprudence over Religious Speech” (forthcoming 2023).
Many years ago, I wrote an academic piece on how anti-discrimination laws would inevitably collide with free-speech and free-exercise rights. Those conflicts continued to mount across the country. In 2018, the court was thought to be ready to clarify the applicable standards in the case of a religious cake shop owner who refused to make cakes for same-sex couples. The court ultimately punted in Masterpiece Cakeshop, leaving uncertainty over the constitutional limitations on cities and states under anti-discrimination law.
Smith’s case has long been a focus for some of us. I have written in favor of taking a free-speech approach to these cases rather than treating them as conflicts under the Constitution’s religion clauses. For that reason, one aspect of this grant of review was immediately notable. The court agreed to consider only one question: “Whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment.”
For Phillips, he has spent over a decade in state and federal courts. In the latest decision, the appellate court found that the creation of the cake can be “inherently expressive and therefore entitled to First Amendment protection.” However, the court still denied free speech protections by dismissing the notion that this particular cake was expressive:
“We conclude that creating a pink cake with blue frosting is not inherently expressive and any message or symbolism it provides to 39 an observer would not be attributed to the baker. Thus, CADA does not compel Masterpiece and Phillips to speak through the creation and sale of such a cake to Scardina.”
The court used the same rationale of the cakes design to deny Phillips religious claims:
“We also reject Masterpiece and Phillips’ argument that the statute punishes them for exercising their religious beliefs because CADA is “applie[d] through the Commission’s purported use of an ‘offensiveness rule.’” For the reasons previously articulated, even if we were to assume such a standard exists, the trial court’s ruling in this case was not predicated on the perceived “offensiveness” of the message, but rather on the fact that the pink and blue cake expressed no message, whether secular or religious.”
Fortunately, 303 Creative has the makings of a major free speech victory. The case involves a challenge of a web designer who was not only told that she must prepare websites for same-sex marriages despite her religious objections but that she cannot post a statement on her own website on her views of same-sex marriage. For free speech advocates, it is a nightmarish combination of compelled speech and censored speech.
With this denial of his constitutional rights, Phillips moves closer to a new appeal to the Supreme Court, which left him to years of additional litigation by effectively punting his case in 2018.
Here is the decision: Scardina v. Masterpiece Cakeshop Inc., No. 2023COA8 (Colo. App. Ct. Jan. 26, 2023), https://www.courts.state.co.us/Courts/Court_of_Appeals/Opinion/2023/21CA1142-PD.pdf.