Academic journal article Washington and Lee Law Review

Masterpiece of Misdirection?

Academic journal article Washington and Lee Law Review

Masterpiece of Misdirection?

Article excerpt

Table of Contents

I. Introduction.963

II. Masterpiece and Mixed Messaging.964

A. Background.965

B. First Amendment Implications?.967

C. Decisionmaker Bias.977

III. The Future Implications of Masterpiece Cakeshop.996

A. What Constitutes Bias?.996

B. Speech.999

C. Free Exercise.1003

D. Antidiscrimination Laws.1007

IV. Conclusion.1009

I. Introduction

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,1 the United States Supreme Court overruled a finding that a religious baker had violated a state antidiscrimination law when refusing to create a wedding cake for a same-sex couple.2 The decision might seem to have been a masterful resolution of an extremely difficult case because the Court issued a narrow opinion that seemed to affirm free exercise rights while at the same time affirming the right of same-sex couples to marry.3 Yet, the opinion, along with the accompanying concurrences and dissent, may well destabilize various settled areas of constitutional law and, in any event, likely represents shots across the bow with respect to a number of issues that will make their way before the Court.

Part II of this Article discusses Masterpiece Cakeshop, explaining some of the contradictory signals contained within it and why this opinion may prove to be much more significant than many commentators seem to appreciate. Part III discusses some of the ways that the decision may modify First Amendment law and may undermine antidiscrimination protections as a general matter. The Article concludes that the Masterpiece Cakeshop holding permitted the Court to put off for another day resolution of some of the very thorny issues that may arise when sincere religious convictions are in conflict with antidiscrimination laws. Many of the implicit views and approaches contained within Masterpiece Cakeshop suggest that future opinions will be at best quite contentious and at worst insupportable as a matter of reason or precedent.4

II. Masterpiece and Mixed Messaging

Masterpiece Cakeshop is a narrow opinion that seems to affirm free exercise rights while at the same time affirming the right of same-sex couples to marry.5 Yet, the opinion has the potential to help bring about significant changes in existing law-the bases for these important deviations are found not in the holding itself but in the factors that the Court implicitly endorses for consideration and in the implicit roles that these factors should play in future cases.6 While the Masterpiece Cakeshop opinion does not change current law, it nonetheless bodes poorly for a reasoned resolution of the difficult issues such cases may present.

A. Background

When Charlie Craig and Dave Mullins asked Jack Phillips about creating a cake to help them celebrate their wedding, he refused, citing religious opposition to same-sex marriage.7 Phillips, a devout Christian,8 believes that "creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs."9 Craig and Mullins then filed a complaint with the Colorado Civil Rights Commission against Masterpiece Cakeshop and Phillips, alleging that that the bakery had denied them "'full and equal service' . . . because of their sexual orientation."10

Colorado has an ordinance prohibiting discrimination in places of public accommodation.11 The act defines "'public accommodation' broadly to include any 'place of business engaged in any sales to the public and any place offering services . . . to the public,' but excludes 'a church, synagogue, mosque, or other place that is principally used for religious purposes.'"12

An investigator found that Phillips had refused to make wedding cakes for six other same-sex couples13 because "his religious beliefs prohibited it and because the potential customers 'were doing something illegal' at that time."14 The investigator also found that Phillips had refused to sell cupcakes to two lesbians who were going to celebrate a commitment ceremony15 because the shop "had a policy of not selling baked goods to same-sex couples for this type of event. …

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