Government Regulation of First Amendment

The US Constitution was drafted to ensure the rights of the American people. Every amendment and article that has been added to the Constitution for that purpose of ensuring the protection of every right of American citizens. Since the Constitution was established, there have been many court cases that challenged American citizens’ rights. Some of these cases have set precedents for future cases such as Marbury v. Madison (1803), Plessy v. Ferguson (1896), and Miranda v. Arizona (1966). The Declaration of Independence states, among these [rights] are Life, Liberty and the pursuit of Happiness, and the American court system cannot deny nor rule against the rights of the American people.

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First Amendment Rights

The First Amendment to the Constitution states that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press (Constitution). These rights are guaranteed to be protected by the Supreme Court. Cases that have protected the First Amendment are Tinker v. Des Moines Independent Community School District (1969) and Bethel School District No. 403 v. Fraser (1986). These cases are important to know as an American Citizen because they are referenced in many cases involving freedom of speech, expression, and press.
The First Amendment guarantees freedom of religion to every American citizen. However, since America was discovered by Christopher Columbus in 1492, religion has been used to incite violence. The commissioner of the Colorado Civil Rights Commission stated that I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be”I mean, we-we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me, it is one of the most despicable pieces of rhetoric that people can use to”to use their religion to hurt others (SCOTUS, 13). The Colorado Civil Rights Commission is no stranger to the First Amendments rights, considering their case against Masterpiece Cakeshop in 2017.

Masterpiece Cakeshop vs. Colorado Civil Rights Commission

Jack Phillips, owner, and operator of Masterpiece Cakeshop in Colorado refused to bake a cake for Charlie Craig and David Mullins, a same-sex couple, wedding ceremony due to his religious views on homosexual marriage. During that time, Colorado had not legalized gay marriage. State law also allowed storekeepers to decline to create specific messages that they considered offensive to a certain extent.
After Phillips declined to make them a cake, the couple filed charges with the Colorado Civil Rights Commission. Their claim was that Phillips violated the Colorado Anti-Discrimination Act which prohibits discrimination based on sexual orientation in a place of business engaged in any sales to the public and any offering servicesto the public. The CCRC referred the case to have a formal hearing before the Administrative Law Judge, who ruled in favor of the couple. However, the ALJ rejected Phillips’ First Amendment claims saying that requiring him to make a cake for a same-sex couple is a violation of his freedom of religion. According to Douglas Fraleigh, the Christians hold the belief in freedom of speech due to their Hebrew heritage (Fraleigh, 2011, p. 28). In 2017, the case found its way to the US Supreme Court where there was a 7-2 ruling in favor of Masterpiece Cakeshop. Considering that commission sided with the couple and did not act as a neutral, unbiased party, Justice Anthony Kennedy ruled that they had been hostile to Jack Phillips’ religious beliefs.

Legality of the Case

When studying this case, some questions considering the religious beliefs of Jack Phillips may rise. What is defined as religious beliefs? An attempt to define religion, even for purposes of increasing freedom of religions, would run afoul of the ?establishment’ clause as excluding some religions, or even as establishing a notion respecting religion (Lockhart, 1987, p. 1113). If the Communist Party claimed religious status during the Red Scare, would the criminal syndicalism laws that limited free speech have passed (Mineshima-Lowe)? One could argue that systems such as Communism explain the meaning and purpose of life, therefore, it fits the status quo of a religion. Another could argue that Democracy and Fascism could also be defined as religions because they fit that description. When defining religion, one must look at one of the philosophers who inspired the US Constitution, John Locke. John Locke religious views would limit religious freedom to forms of worship that have no destabilizing political consequences (Kessler). In that case, the religious views of Jack Phillips seem to fit that description. With that in mind, the First Amendment guarantees freedom of religion to any US citizen, which holds a solid defense for Jack Phillips.

Section one of the Fourteenth Amendment of the US Constitution, in summary, states, All persons born or naturalized in the United Statesare citizens of the United Statesno state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United Statesnor deny to any personthe equal protection of the law (SCOTUS). This amendment commonly referred to as the equal protection of the law amendment is famously noted in groundbreaking cases such as Brown v. Board of Education and Roe v. Wade. Craig and Mullins pleaded the Fourteenth Amendment when Phillips refused to sell them a personalized wedding cake. As soon as we sat down with the owner, he asked who the cake was for, we told him that it was us, and he informed us that he would not bake a cake for a same-sex weddingwe were mortified and humiliated stated David Mullins in a post-trial interview (Barnes). Phillips told the couple that he would happily sell them anything else in his shop, but since their request goes against his religious views, he respectfully declined.
After the case was decided, Phillips’ appealed to the Colorado Court of Appeals. Phillips then petitioned to the Supreme Court for certiorari with the following question: Whether applying Colorado’s public accommodations law to compel Phillips to create an expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment (SCOTUS). The Supreme Court found the CCRC guilty because of their bias of the gay couple.


The Supreme Court used an exceptional amount of hypothetical questions in their questioning of the lawyers. The questions varied from a baker calling their cake a piece of expressional artwork to an architect expressing themselves in their buildings. The Supreme Court continued to ask both attorneys, Frederick Yager with Craig and Mullins, and Kristen Waggoner with Masterpiece Cakeshop until they reached a decision.

Michael Farris, President, CEO, and General Counsel of the Alliance Defending Freedom stated in his post-trial interview that this is the first time in American history where there is a serious consideration of compelling people to deliver a message that’s contrary to their beliefs (SCOTUS). Farris also gave a lot of bold statements about the First Amendment including that freedom of speech includes the context where other people may be offended (SCOTUS). Conclusion

This case puts America in a sticky situation because, in order for this case to set the precedent for future cases, the Supreme Court would be forced to decide if the fourteenth or the First Amendment is worth sacrificing. The Supreme Court decided in favor of Masterpiece Cakeshop due to bias. The main argument for Waggoner was that the CCRC violated Phillips’ First Amendment rights of freedom of speech, freedom of expression, and freedom of religion. The main argument for Yager was that Masterpiece Cakeshop violated the Fourteenth Amendment when they refused service to the couple.

In regards to the law, the Supreme Court made the right decision because the CCRC showed bias when they should have acted as a neutral party. Michael Farris also said in his interview that tolerance is a two-way street (Farris). Showing tolerance to one side and not the other is not freedom. If this incident were to happen in 2018, the Supreme Court would rule in favor of the gay couple due to Obergefell v. Hodges, which legalized gay marriage in 2015 guaranteed by the Equal Protection Clause and the Due Process Clause (Oyez). Before this ruling, Republicans tried for many years to put an amendment on a ballot to make gay-marriage illegal across the country (Klarman, 2014, p.193). For future cases that are similar to this, the Supreme Court will have to judge on a case-by-case basis because there is nothing legally restricting business owners from expressing their views on their creations.


  1. Fraleigh, D. (2011). Freedom of Expression in the Marketplace of Ideas. Thousand Oaks, CA: SAGE Publications, Inc.
  2. Klarman, M. (2014). From the Closet to the Altar. Oxford: Oxford University Press.
  3. Lockhart, W. (1987). Constitutional Law. St. Paul, Minnesota: West Publish Co.
  4. Mineshima-Lowe, D. (unknown) Retrieved November 11, 2018, from
  5. Robert Barnes (December 5, 2017) Retrieved November 13, 2018, from
  6. The Supreme Court of the United States (2017, October). Retrieved November 8, 2018, from
  7. The Supreme Court of the United States (2018, June) Retrieved November 13, 2018, from
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Government Regulation of First Amendment. (2019, Apr 26). Retrieved December 8, 2022 , from

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