Jack Phillip, the Colorado baker who brought the challenge in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission has again lost an appeal in Colorado state court. After the Supreme Court effectively punted on the issue of his free speech and free exercise challenges to the Colorado Anti-Discrimination Act (“CADA”), which protects against the denial of service in a place of public accommodation based on one’s identity. After the 2018 decision, Phillip faced additional demands including the creation of a gender transitioning cake. The Colorado Court of Appeals ruled on Thursday that the refusal to make the cake requested by Autumn Scardina did not constitute free speech.
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.
There is a disconnect between the question the Supreme Court will consider and the facts found by the courts so far in this case.
The Supreme Court will consider whether public accommodation law can compel an artist to speak or remain silent. For that question to be relevant here, the baker must be viewed as an “artist” when he bakes his cake and the baking must be viewed as his speech.
The courts below held that the mere baking and selling of a pink and blue cake contained no message in and of itself and, moreover, that the baker would not be associated with the cake. There was thus no expression by the baker baked into this cake.
Certainly, public accommodation laws can and do preclude discrimination in the sale of standardised, mass-produced products. Just as clearly, those laws cannot compel an artist to create or refrain from creating a work of art.
Here, the question would appear to be whether a custom-made product, if void of artistic or other expression, is nonetheless to be treated as a work of art rather than a standardised product. I have trouble seeing why it should be.
Check out his custom cakes. He is absolutely an artist.
And I will add to this the entire concept of “hate speeh” legislation that also abridges one’s right to free speech. When is this nasty piece of work going to end up at the door of the SCOTUS? We either have free speech or not, plain and simple.
Let them not hate upon the cake, but rather the eater.
He should make cakes for everyone, and if his heart isn’t in the project and the cake looks pretty bad, well… all he has to say is my heart wasn’t in it but I did the best I could- Sorry.
People get what they deserv. If they are abusive or just plain mean- they deserve a lousy cake.
While I’m no expert on ‘gender transitioning’, in this case I would bake a Masterpiece cake charging only a modest $19.99 +s&H, 3 pigs, 7 laying hens, 2 donkeys and 1 vestal virgin. .. who was, that day, leaving for the coast.
OBO.
*Both Islam and Christianity permit cake baking (imho) .. . and provide detailed instruction for fair and reasonable exchange.
I make this type of a decision, free speech v. discrimination, simple. In my mind, free speech has primacy. When the two are in conflict discrimination has to be substantially proven. I think public accommodation laws should have a second look. Are they creating more harm than good?
S,Meyer, were does compelled speech enter the equation?
Free speech and compelled speech has to be at the same degree of importance.
Iowan, I’m not sure where you are heading. Compelled speech isn’t free speech.
Dear Prof Turley,
There is no such thing as a ‘transition cake’. That’s all in your mind.
*once the cake is baked .. . all you can do is add strawberries and whip cream.
This is a common example of legal, unfair advantage government agencies have over individuals. Every government agency that has ANY authority over you can take you to court and destroy you, not based on any kind of guilt or innocence but based on economics. The agency tax funding is almost without limit when compared to the people under it’s jurisdiction. We are defeated because we don’t have tens of thousands of dollars for lawyers to protect us. The deck is stacked against us so long as the government has nothing to loose.
How do we fix this ?? The Colorado Civil Rights Commission, that took this case to court, should have had to pay All of the Baker’s legal fees and any income he lost as a result their actions.
With nothing at risk there is no reason to not force their will upon the people.
There is absolutely no way that I would bow down to these evil pieces of pure scum. And if he’s smart, he would’ve sold his business on paper for about, $5 dollars to a relative of his and kept it quiet. Which I doubt if he did that. I would have. I had a close friend of mine in Florida that was, I would consider fairly well off. And, his wife of just 1 1/2 years! turned out to be a real winner!! A big-time real winner!
Talk about a grifting piece of scum. He met her at the, The only thing she had going, for her was being very, very good looking and 36 D-Cup’s! well, in the last 6 months, he caught on to her act, and sold everything he owned. And moved. Left her high and dry. And he left Her, Her 2019, Mercedes SL-63-AMG And I don’t know if it’s still there or not.
but he did send me this email because she sold it to classic cars of Palms Beach!! Check out what they’re selling it for. And they gave her only $85,000!! And, he left her, $2500. Lol 😆 anyway, he sold the 2 houses they had and, the boat they had, custom built. Now the agent who bought it, has it up for sale. Here it is, http://www.merlewood.com/luxury-yacht-for-sale-117649/mary-p-yacht
http://www.kbb.com/cars-for-sale/vehicledetails.xhtml?listingId=667218380
I would be eager to see what the courts would do if it were a muslim owned or black owned bakery. This case is just another cases are just another attack on majority white religions.
This is all insane. Primarily this is bullying by trying to get the state to enforce the plaintiffs point of view. The defendant also needs to re-examine what is most important to him and focus on his core which is a little unclear at this time. Stipulated exclusions should be up front if at all possible and not seemingly spur of the moment. Surely there are other bakers available and if there are the case should be thrown out. The Supreme Court needs to quit avoiding the issue and take the case and do its job or is it simply trying to generate more lawsuits. Either / or but make a decision. I see Roberts incrementalism as just leaving litigants twisting in the wind when a reasoned and thoughtful decision could be made and boundaries established. Incrementalism seems more about avoiding a decision and hoping that people (on both sides) would be reasonable but this is not a reasonable time and only absolute clarity seems to be useful (whatever that is) .
Making a cake is not a statement of assent or dissent. Red/Blue cakes are made all the time as well as Red/White and Blue. Language is another thing entirely. I am starting to think the Baker is obdurate and does not know when to declare victory and walk away.
To all of the lawyers who frequent this site, a GIANT “EFF YOU”. Another large group of America-haters (some exceptions) who wish to see the culture ruined. Thanks loads.
We can never have true freedom if we are not allowed to discriminate.
Ever notice that when the Court rules against a conservative like Jack Phillip, the Justices don’t consider it discrimination or “punishment” ? The double standard is amazing. Thank you, Jonathan, for an excellent article.
Gee, I wonder why this particular baker was picked to make these particular cakes?
Let’s see how brave these Regressives REALLY are. Let’s see them do the same to a Muslim baker, and see where THAT gets them. They are targeting Jack, and should be charged with a hate crime themselves, because THAT is what it really is.
That must be some cake!
*they must really want their cake and eat it too.
If the cake had anything on it that advocated for trans nonsense, I would agree with the baker. If the baker was required to publicly present the cake, I would agree with the baker. If the baker had to make pro-trans statements, I would agree with the baker. None of those conditions exist here, so the baker will lose. This was an aspect of the case I was unaware of until now.
Let’s look at it from the standpoint of accepted law. If a black man enters a bakery and demands a cake slathered with BLM slogans, or demands the baker attend a BLM rally, or that the baker make statements in support of BLM, the baker has a right of refusal. If the same black man demands only a cake with no slogans, refusing that black man is prima facia discrimination.
How would we feel if conservatives were denied service simply for being conservative? That’s starting to happen. What argument do we have if we think we can arbitrarily refuse service to others?
It happens all the time. It just happened to Gianno Caldwell in Florida. He got kicked out of a restaurant because of his views. Remember when Progressives were chasing Conservatives out of Restaurants after Mad Maxine told them to go out and tell Conservatives that they aren’t welcome?
Wen, whether public accommodation rules should exist is a separate question, but if we accept their existence, we need a simple standard that applies to all. Just because one party breaks the rule or law doesn’t seem to mean they don’t exist, so what you are demonstrating is that the law isn’t functioning correctly.
Can a small private establishment announce that it will only serve those with certain ideological beliefs? I would say yes, but then we have the problem of restraint of trade. Things are very messy because one rule or law conflicts with another. If one wants to unravel the mess, one has to proceed very carefully.
The analogy is off, by enough to not apply.
We have in the mix a creation of “protected classes”. The goal of homosexuals for decades is the grab the gold ring of “protected class” A class with zero immutable identifiers. If looks like judges have tossed a fictional identifier of ‘transgender’ with Homosexuals. Another group with zero immutable identifiers. AT the same time, we have a class with immutable identifiers, Asians, suffering discrimination trying to apply to colleges, but somehow, their immutable identifies fall short of judicial examination.
Constitutional scholars warned, that forcing a business to accept customers they don’t want, was a Constitutionally unsustainable standard. Running head on into freedom of association. Welcome to the 21st century.
The court also created its own monster, by amending the constitution, from freedom of speech, to freedom of expression. Furthering the mess, Judges defining getting naked in front of a group of men in varying stages of inebriation. was “speech”.
There are many more examples of the judiciary struggling to align all of their conflicting standards, they have handed down from the bench.
“. . . if we think we can arbitrarily refuse service to others?”
“Exclusion” is inherent in the right to property. If it’s your property or business, you get to decide who to trade with — on whatever grounds you choose. If you don’t like the owner’s choices, shop elsewhere.
Diogenes – if he were the only baker in town, I could agree with your point. But if other alternatives exist, why force this guy to work on something that he considers abhorrent? The law might not recognize exceptions where reasonable alternatives exist, but then the law should be challenged on that basis. Compulstion should always be avoided in a free society wherever possible. Of course, the baker always has the option of refusing to make “wedding cakes” or symbolic cakes of any kind. When the Trans Madness abates, he can go back to the business of making symbolic cakes.
Diogenes, putting aside the questions of accommodation laws, wouldn’t one wish to determine if the cake requested was generic?
Can “If the cake had anything on it that advocated for trans nonsense,” be in the eyes of the beholder? I think the one who feels discriminated against has to prove his case.
Maybe I am reading things wrong. Can you help me?
Alan, sorry for the tardy response. I had to attend to a lot of things today.
You write, “Can ‘If the cake had anything on it that advocated for trans nonsense’ be in the eyes of the beholder?”
I think Wen, Iowan, Edward, Sam, and you are making a similar argument: by setting up a competing standard that can conflict with right of association, the courts have created a much messier case law. Your example proves the point in that it becomes very much a judgement call (eye of the beholder) on many of these discrimination claims.
The devil is also in the details on whether a claimant looks or acts indecorously when she asks for a cake. If a claimant provokes a rejection due to her comportment, the defendant might have a case, but how one judges that can also be messy (in any event, the Professor makes no mention of such a defense in this Masterpiece case).
Conceding all that, I stand by my argument because, as Thomas Sowell stated, “There are no solutions. There are only tradeoffs.” The tradeoff I see is a lot more civil conflict, arising from legalizing arbitrary discrimination in commerce. I believe a messier case law is the lesser of two evils and that the right of association is not dead but rather not absolute in all cases.
Now I think I can anticipate the response: messier case law causes more civil unrest by allowing provocateurs to engage in lawfare and charlatan claims. That happens a lot, I’ll admit. I still think there would be far less unrest if we had an anti-discrimination standard for commerce. I’m sure others will earnestly disagree. In fact, I wouldn’t be surprised if Thomas Sowell, himself, agreed with you guys and not with me.
Finally, the left is in love with cancel culture, the mother of all bigotries. They’ve already used it to filter conservatives out of academia and media. I’m reluctant to give the left yet another excuse for discriminating against conservatives.
I am puzzled the Professor sees this as a free speech issue. Looks more like a right-of-association issue to me, so maybe I’m missing his point.
Diogenes, it is hard for me to argue a position that might seem to defend the “act” of discrimination. The problem is there is no end to the entanglements encountered when creating laws intended to abridge the people’s rights to free association.
Being a pluralistic nation with much diversity and given humanity’s desires to be with their kind or those they are most familiar with, interrupting natural actions that in some respects represent survival is a task that will create more problems unless managed in the least invasive way.
“becomes very much a judgement call (eye of the beholder) on many of these discrimination claims.”
Considering what I have already mentioned, one cannot create good laws if laws are not specific, understood by all, and narrow. How can one design good laws when basing everything on the ‘eye of the beholder’? The rule of law requires laws that apply equally to all. Take note justice is blind. [Historically, we see Justitia holding a balance scale, carrying a sword, and wearing a blindfold.]
I get into trouble with my friend John Say because of Hayek’s advice of interfering only where necessary and causing the least harm to the marketplace ( in this case, how humans would naturally function). I also dislike that, but we live in a somewhat chaotic environment that seems to cause such a necessity.
I know my answer isn’t hitting the center of the target, but it is late, and I am tired, or maybe not up to the task of telling you my thoughts. I look at the long term knowing short-term good people will suffer.
Let me take specifics.
Universities: The government subsidizes them, so universities do not exist in a free marketplace. Look at how students study subjects that are dead ends. Would that happen if universities and students were in the marketplace?
The bakery case: That is a buyer and seller situation. A free market means a willing buyer and a willing seller. Any alteration by making one party unwilling is not a free market.
‘I can anticipate the response: messier case law causes more civil unrest by allowing provocateurs to engage in lawfare and charlatan claims. ”
That is correct and something I have seen and, at a distance, involved myself with to obtain a solution.
I have seen discrimination close to me. Did it make me weaker? No. It made me stronger and better able to compete. The helping hand of government, doing for me what I can do for myself, is a hindrance, not a help.
I sympathize with your feelings, for you are probably a better human being than myself and more able to express sincere compassion. I have empathy but have more trust in Sowell’s theories of tradeoffs involved with government action.
Alan, I wouldn’t be surprised if you were right and I was wrong. I recognize there are risks with my PoV. You argue the case very well.
I think the essence of our discussion is well-stated by you, “The tradeoff I see is a lot more civil conflict, arising from legalizing arbitrary discrimination in commerce. I believe a messier case law is the lesser of two evils and that the right of association is not dead but rather not absolute in all cases.” I am unsure of our differences, for ‘not absolute’ leaves that tiny gap mentioned. How and when to fill that gap is most important. No matter the choice, there will always be some degree of pain. Generally, society will naturally fill it in to dull the anguish.
I will go far beyond issues of religion and discrimination.
All private discrimination of any kind is constitutional.
It may not all be desireable.
It may make you a bigot.
But it is not the business of govenrment to bar us from discriminating against others.
Boycott Chick-a-filet is you think the owners are anti-gay.
Boycott disney if you think their movies are inappropriate for kids.
Do not hire blacks if you are racist, or jews or ….
But keep the government OUT OF it.
No publc subsidies at all.
If Harvard wishes to discriminate against Asians – fine.
But lets get rid of govenment student loans so that there is no govenrment issue.
Get rid of public accomadation laws.
No matter how wrong it may be for a service provided to discriminate on the basis of Race
it is MORE wrong for govenrment to step in.
I do not care if Mr. Phillips is claiming a religious practice exemption from baking cakes for gay weddings or he just hates gay people.
If he does not wish to bak cakes for gay weddings – for no reason at all – that is his business.
And I will buy my cakes somewhere else.
How about if he wanted a plain cake and told the baker it was for a BLM rally?
Well, if I were the baker, I’d make sure it had plenty of chocolate Ex-Lax 😉
I was less than pleased when the Court punted on this issue a few years ago and this is the reason why. The leftists will not let this guy go, it is like Oberlin College all over again.
I would ask the Court if it would mandate that Barbra Streisand sing at Trump’s Inaugural Ball since she is a singer and she would sing at Obama’s if asked. You cannot mandate speech. Would the courts in CO mandate that a Muslim baker create a cake with a picture of Muhammed on it? Or a Jewish baker create a Nazi themed cake? The Muslim situation is tellingly apt since we all know that since SOME Muslims don’t want to, or can’t due to religion, see a picture of Muhammad how would the agencies and courts in CO deal with it? I am guessing they would side with the Muslim because Muslims get strict scrutiny while Christians get babkas. An appropriate term for a bakery case.
In the case at hand the bakery shop does not ban gays or trans people, they can shop there the same as anyone else, what the baker won’t do in CREATE something with which he disapproves. You cannot mandate specific performance and the Supremes need to step up here.
“. . . a religious cake shop owner who refused to make cakes for same-sex couples.” (JT)
Here’s the Left’s view of using the government’s police powers:
If it likes something (vaccinations, homosexuality), then it compels others to accept it. If it does not like something (dissent, guns), then the Left criminalizes it.
The government’s police powers are not a club by which to force your preferences on others. That is tyranny; not freedom.
Is the left competing you to be gay? Stop with the BS. leave people live their lives. What is wrong with you people?
Typical clown.
So you think the baker should be able to live his life as HE wishes. Or do only gays get to do that.
Clowns lack self awareness, they are entertainers not intellectuals.
What happens to a cake before or after it leaves the baker’s shop should have zero effect on how the baker lives his life**.
OTOH. There is no doubt that the baker is trying to influence how others live their lives.
** It only effects the baker’s life in that it hinders the baker’s attempt to meddle with the lives of others.
no clown, try to understand this and you will be on your way to becoming self aware.
The baker is forced to bake a cake
The clowns placing orders can go to any other baker. The baker, in fact, wants them to go to another baker.
The influence is one direction
Do you see now, clown.
The baker is forced to bake a cake
You are lying. The baker did not and never will bake the cake.
If somebody advertises that their business is baking cakes who would have ever guessed that someone coming into the shop and asking for a cake could ever be turned into an infringement of the baker’s. rights.
The state is force, clown.
“It only effects the baker’s life in that it hinders the baker’s attempt to meddle with the lives of others.”
That’s a good point.
The law mandates tolerance and equal treatment. Many, of the sexually confused, including those in my family , want this life style to be embraced and celebrated. That is a bridge too far.
Solvermn,
I see it as a small interest group that is trying to force the, what? 99.9% of the rest of us to care. It does not concern me. It does not impact my life unless they try to force it or force me to overtly endorse it against my will.
Some would argue what does it hurt for me to do so?
I do not feel I have too. (see what I did there?)
I would say to the same to most other small interest groups.
The clowns requesting cakes are bullies. They are more like Gacey clowns – not funny.
When it comes to the LGBTQP, this administration and its judiciary are back a-wards.
Sure, let’s just relagate LGBTQP as second class citizens. Who needs cake anyway? Housing? kick them out if you want. The world will be better off if everyone were white “christian” a holes.
Bob, would a Muslim bake be mandated to bake a cake with the face of Muhammed on it? Come on genius, answer that simple question. Muslims get Strict Scrutiny while Christians get babkas.
Bob, the bigot, hates SOME people and he thinks that is fine. Look in the mirror pal, you are the bad guy.
Well put.
Come on, Bob. No one else bakes cake in the area? No one is relegating any one as a second class citizen. Sometimes people victimize themselves.
“No one else bakes cake in the area?”
And there are innumerable online bakeries.
Bob, having power must of the population doesn’t thave, is the opposite of 2cnd class.
Bob – there is no major issue here. Buy a “non-statement” cake and write whatever you want on it. It is easy.
” Buy a “non-statement” cake ”
So tell me, what color cake would have been acceptable for Masterpiece to sell to somebody who says they’re transgender?
There is no reason for transgender status to come up unless the person was looking for something having to do with transgenders.
What color?
Who knows!
Like that white cake with blue and yellow outline and pink roses? Sold!
Sell ya the food coloring, pastry bags and the tips too so you can finish it to your delight.
Bob,
No one is calling to “relegate” anyone to second class citizens. The professor and others are noting how rather then taking their business elsewhere, they would rather play the victim and force someone else to perform an act, in this case baking a cake, that is against the baker’s religious beliefs. And it appears to have escalated to government enforcement.
Nothing says tolerance like forcing ones will upon someone else.
And, would,
“The world will be better off if everyone were white “christian” a holes.”
Did you mean, “The world will be better off if everyone were not white “christian” a holes.”?
Was that a typo, or an attempt at sarcasm?
BTW, I am not white, and I am definitely not Christian.
“The professor and others are noting how rather then taking their business elsewhere, they would rather play the victim and force someone else to perform an act”
Why doesn’t the baker move to some other state that allows this sort of bigotry?
is it not the baker who is pretending to be a victim?
Masterpiece Cakeshop has been in business since 1993, before all this woke nonsense started.
Why should he leave?
Why didnt they just goto another bakery?
Why is it so hard for them to respect someone else religious beliefs?
Who took who to court in the first place?
Really think he wants to be in this position?
I am not religious in the slightest, but I will still respect someone who chooses a given religion. Just dont try to force it on me, to include wokeism.
I would sell pack up and move before I would succumb to the whims of this harlot!!!:
https://sumofthyword.com/2021/01/07/mystery-babylon-the-great-and-her-beast/
The Fascists FORCE you to their bidding. Businesses don’t have to CUSTOM items they don’t want!
This is JUST WRONG! Can I force a Jewish Bakery to give me a bacon sandwich?
Give it time my friend. Just give it time because we have seen anything yet.
Guy, the Jews will be treated the same as the Christians, it is the Muslims that will get the special privilege.
The left boycotted NC because they didn’t want men using woman’s bathrooms and yet the say nothing about Iran killing gays.
Women denounce America as unsafe due to Dobbs, but say nary a peep about the Taliban and their crimes against women.