the First Amendment Anti-Discrimination Law


A baker started his day with a prayer and a cup of coffee. He collects all the ingredients for his cake recipe when a gay couple walks in and asks for a wedding cake, completely unaware of what would come for him after this July afternoon. In Masterpiece Cakeshop Inc.

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v. Colorado Civil Rights Commission, the court sheds light on the tensions between the First Amendment and Anti-discrimination laws, attempting to draw the line between individual freedoms and discrimination. The outcome of this case would fuel the ongoing fight for LGBTQ rights in the United States, especially under the new administration. The Supreme Court not only decides whether the application of Colorado’s Anti-discrimination law violates Free Speech or Free Exercise Clauses, but also how to balance the conflict between religion and homosexuality in today’s society.


This paper explains the facts of the Masterpiece Cakeshop case and highlights the relevant law and decision of the Colorado Court of Appeals. The paper discusses the issues at hand and pinpoints what the Supreme Court has to decide. It will provide a detailed explanation of the rationale of the Colorado Court of Appeals and touch upon the petitioner’s argument. Through a close analysis of both sources, this paper will explore the differences of the opposing parties and reveal the strengths and weakness of their arguments. Finally, the paper will conclude by proposing that the Supreme Court should uphold the Colorado Court of Appeals judgement.

Statement of facts of the case

In Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the petitioners were Colorado Civil Rights Commission on behalf of Charlie Craig, and David Mullins and the respondents were Masterpiece Cakeshop, Inc. and Jack C. Phillips. In Lakewood, Colorado,
Craig and Mullins visited Masterpiece Cakeshop and asked Phillips to design and bake their wedding cake to celebrate their same-sex marriage. Philips politely declined and explained that he does not make wedding cakes for same-sex weddings because of his religious beliefs; however, he willingly offered to provide other baked goods as alternatives. Craig and Mullins filed discrimination charges on the basis of sexual orientation under the Colorado Anti-Discrimination Act. Craig and Mullins also filed a complaint with the Office of Administrative Courts claiming that Masterpiece had discriminated against them in a public accommodation because of their sexual orientation, also in violation of the Colorado Anti-Discrimination Act. The parties did not dispute any material facts and therefore filed cross-motions for summary judgement. The Colorado Court of Appeals affirmed the Commission’s decision in favor of the
respondents. Masterpiece and Phillips appealed.

Recitation of the relevant law

There are two laws relevant in this case. The First Amendment prohibits laws “abridging the freedom of speech” and prevents congress from making laws that “prohibit the free exercise of religion.” The Colorado Anti-Discrimination Act (CADA) states that it is unlawful for a 2
person to refuse, withhold, or deny to an individual or a group “because of … sexual orientation … the full and equal enjoyment of goods services, facilities, privileges, advantages, or Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission1 U.S. Constitution2 accommodations of a place of public accommodation.” In order to file a discrimination claim 3 under CADA, plaintiffs must prove intent and that the discriminatory action was based in whole or in part on their membership in the protected class.

Statement of the issue and holding

The issue is whether the application of the public accommodations law to design and bake a cake for a same-sex wedding, which conflicts with religious beliefs, violate the Free Speech or Free Exercise Clauses of the First Amendment. The Colorado Civil Rights Commission found Masterpiece Cakeshop Ltd. in violation of CADA. The Colorado Court of Appeals affirmed on the basis that the Colorado public accommodations law does not violate Phillips’ first amendment rights. The supreme court must decide if the application of the Colorado public accommodations law that compels Phillip to express beliefs that conflict with his religious views violates the Free Speech or Free Exercise Clauses protected under the First Amendment. Another issue is the scope of what constitutes “symbolically expressive” in warranting First Amendment protections. The court of appeals held that designing and creating a custom cake is a form of conduct and not expressive speech. The Supreme Court must also determine whether or not the art of baking constitutes speech or conduct. Explanation of the rationale of the court of appeals The Colorado Court of Appeals referred to previous United States Supreme Court decisions to support their rationale. Masterpiece asserted that its refusal to serve Craig and Mullin was solely because of their intended conduct to enter a same-sex marriage, and not “because of” their sexual orientation. The Supreme Court recognized that distinctions between discrimination based on status and discrimination closely related with status were generally inappropriate. When conduct is so closely correlated with a status, the conduct is predominantly performed by people with that status: Gays, lesbians, and bisexuals predominantly engage in same-sex marriage. Masterpiece admitted that it refused to serve Craig and Mullin because of its opposition to same-sex marriage, which the court established as closely correlated to sexual orientation. Consequently, the court can reasonably assume that Masterpiece’s decision involved an intent to discriminate because of sexual orientation.

The court of appeals also referred to the Supreme Court decision in Elane Photography, LLC v. Willock 309 P.3d 533, 60-64. In 2006, Vanessa Willock attempted to hire Elane Photography to take pictures during her wedding ceremony; however, Elane Photography refused to provide service due to the owner’s Christian beliefs. In 2012, the New Mexico Supreme Court held that New Mexico’s anti-discrimination law extends to protect “conduct that is inextricably tied to sexual orientation.” They also referred to Elane Photography, LLC v. 5 Willock to address Masterpiece’s claim that it did not completely refuse service by offering alternative goods. Elane Photography offered other services; however, offering alternatives does not change the fact that it refused to provide services offered to the public.

The court also raised the issue of whether the Commission’s cease and desist order violated the First Amendment by requiring Masterpiece to make cakes for same-sex weddings.

In order to decide if conduct is “inherently expressive,” the court must determine if there were any intentions of conveying a message and whether “the likelihood was great that the message would be understood by those who viewed it.”

The conduct in question was the Colorado government’s mandate that Masterpiece must comply with CADA. The court concluded that selling wedding cakes to all customers, regardless of sexual orientation, does not communicate a celebratory message about same-sex weddings to a reasonable observer. It reasoned that the public would have no way of knowing if Masterpiece decided to serve their customers because of its views on same-sex marriage. The court also deduced that the fact that a business charges for its services reduces the likelihood that someone would believe that Masterpiece supports the message reflected in its products. The court made another reference to Elane Photography, LLC v. Willock 309 P.3d 533, 60-64. In 2012, New Mexico Supreme Court held that “while photography may be expressive, the operation of a photography business is not.” New Mexico’s public accommodations law did not force the 7photographer to convey a message, but rather mandated that the business as a public accommodation cannot discriminate against potential clients. By precedence, the court similarly concluded that CADA did not compel expressive conduct.

Masterpiece’s argument (that the Commission focused on the conduct rather than the product) prompts the threshold question whether the compelled conduct was “sufficiently expressive.” The court determined that the Commission’s order was not “sufficiently expressive” to call for First Amendment protections. It recognized that a wedding cake may convey a certain message in some circumstances; however, Philips refused service before discussing the cake’s design and hence, evidence of Craig’s and Mullin’s wedding cake details were not relevant to the case. The court also held that under CADA, Masterpiece is not obligated to agree with the views of its customers and can out rightly say so. By doing so, “such a message would have the effect of disassociating Masterpiece from its customers’ conduct.”

In dealing with Free Exercise of Religion, the court concluded that CADA is a neutral law of general applicability, and hence, does not violate the first amendment. To support its argument, the court referred to Smith, 494 U.S. at 877. In 1990, the court concluded that the Free exercise clause “does not relieve an individual of obligation to comply with a valid and neutral law of general applicability” on the basis that the law forbids action that the religion requires, and vice versa. If the law burdened a religious practice, the law must be justified with “compelling government interest.” The court held that CADA was generally applicable because 9 it did not exclusively exempt secular conduct. In response to Masterpiece’s claim that CADA was not generally applicable because of its exemptions for bona fide relationships, the court mentioned that such circumstances do not discriminate on the basis of religion, and on face value, apply to both religious and secular conducts. CADA only exempts public accommodations that are principally used for religious purposes. The court also concluded that CADA was neutral. Masterpiece argued that CADA was not neutral because it exempts entities used for religious purposes, but not Masterpiece. The court held that Masterpiece was not exempt because the bakery was not primarily used for religious purposes. The court also added that, logically, the existence of an exemption for religious entities undermined the claim that the law discriminated against Masterpiece’s religious standpoint.

The court of appeal concluded by establishing that the hybrid rights claim did not apply because the court had already decided that the Commission’s cease and desist order did not violate Masterpiece’s right to expression. The court also held that, although the Colorado Constitution requires that it reviews neutral laws of general applicability under strict scrutiny, Colorado appellate courts have consistently relied on federal precedent when reviewing free exercise claims. The court concluded that CADA is “rationally related” to Colorado’s interest in eliminating discrimination in public accommodations. It mentioned that discrimination based on sexual orientation, especially in places of public accommodation, have adverse economic effects.

Explanation of the petitioner’s argument

The Petitioner focused on four main arguments against the holdings of the Colorado Court of Appeals. First, the petitioner claimed that the court reasoning conflicted with the Supreme Court’s compelled speech precedent, in that the court of appeals held that the state can
compel Phillips to create a wedding cake that promotes a message he did not agree with and rob him of ownership over any message portrayed in his art. In other words, Phillip’s custom wedding cakes constitute speech and therefore, the state cannot compel him to create speech.

Secondly, the petitioner argued that the holding that Phillip’s art was conduct and not speech directly conflicts with rulings by the Ninth and Eleventh Circuits. The Ninth and Eleventh courts essentially determined that the art of tattooing was pure expression “entitled to full constitutional protection.” The petitioner argued that the Ninth and Eleventh Circuit would have concluded that Phillip’s custom wedding cakes were pure speech. By minimizing the “creative process” as merely actions, the court of appeals avoided strong precedent against compelled speech. Alongside arguing that the court’s decision (that artistic cakes are non-expressive) fuels conflict in what is considered expressive, the petitioner believed that the ruling that Phillips violated CADA conflicts with the Supreme Court’s free-exercise precedent and the decisions by the Third, Sixth, and Tenth Circuits. The petitioner argued that by rejecting religious beliefs as a valid reason for declining an order, the Commission “singled out” Phillips’ religion for “discriminatory treatment.” In similar cases, the Commission considered the baker’s objection as “message-based” except of Phillips .


The biggest difference in interpretation lies in logical versus emotional approach of the opposing parties. The court of appeals argued that the commission’s order, “even if compelled by the government,” did not warrant first amendment protections because it was not sufficiently expressive. However, the petitioner argued that the mere idea that the government can compel conduct, even if it is justified, violated the constitution. Hence, the compelled speech doctrine should cease to exist on the basis that historically and in this case, the government had overstepped and “magnified the intrusiveness” of its order. Like the state cannot force people to recite the Pledge of Allegiance, it cannot force Phillips to conceive and form art that delivers a message that he does not agree with. Yet, the court of appeals explicitly stated that the compelled conduct was just that Masterpiece act in accordance with CADA by not basing its decision to serve a client on sexual orientation. If Masterpiece wishes to sell wedding cakes to heterosexual couple, it must also sell wedding cakes to same-sex couples in the same manner. Though the appeal of the petitioner’s argument lied in the idea that Colorado expects him to develop a custom design that celebrates homosexual marital union and physically create a wedding cake, which is typically very labor-intensive, the argument falls short by not distinguishing Phillips as a cake artist from that of a hairdresser or caterer. To add, the petitioner did not take into consideration that Phillips declined to serve Craig and Mullins before even discussing what they wanted in their wedding cake.

As reflected in the explanation of the rationale of the court, the court of appeals took a very logical and organized approach when ruling that Phillips’ custom wedding cakes was conduct. The court could not determine if Craig’s and Mullin’s desired wedding cake constituted symbolic speech because, again, Philips declined Craig’s and Mullin’s request before any discussion about the cakes design. The petitioner responded by referring to the Ninth Circuit holding in Anderson v. City of Hermosa Beach, where the Ninth Circuit ruled that a tattoo is a form of expression “entitled to full constitutional protection.” It held that speech should not lose First Amendment protections based on the kind of surface it is applied. The petitioner argues that Phillip’s cakes are no less art than tattoos, composed of words, abstract or realistic images, and symbols, “all of which are protected forms of expression.” Although the petitioner claims that the court of appeals “evaded strong precedent” by declaring the art of baking wedding cakes as conduct, there is doubt whether the Ninth Circuit holding can even apply. The tattoo parlor did not violate any law, where Masterpiece cake shop ran into conflict with the public accommodations act. At this point, the petitioner seems to be picking at strings in efforts to work around the structured approach of the court of appeals, perhaps attempting to draw sympathy from the Supreme Court. It is also interesting to note the emotional, descriptive, emotional diction in the petitioner’s argument as contrasted to concise, stern diction of the court of appeals.


The Supreme Court should affirm the Court of Appeals decision that the Colorado public accommodations law does not violate Phillips’ first amendment rights. Although a grey area exists in where to draw the line between discrimination and freedom of speech or religion, the Court of Appeals proposed the stronger argument. At the end of the day, CADA is not telling Masterpiece to completely alter his views on same-sex marriage, but rather, to simply offer service to all people, regardless of sexual orientation, if it wishes to operate as a public entity. As mentioned earlier, this case plays a huge role in ongoing fight for LGBTQ rights.

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