Masterpiece Cakeshop v. Colorado Civil Rights Commission has major implications for religious freedom. Here’s what happened in the oral argument.

On December 5th, the United States Supreme Court heard oral arguments in a case that will have major effects on religious freedom. The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, pits a Christian baker’s First Amendment rights against discrimination against the LGBT community.

No cameras or recording devices were allowed inside the courtroom; however, that hasn’t stopped Palmetto Family from getting a first-hand account of the proceedings.

Sarah Jackson earned her J.D. from the University of Alabama Law School and is licensed to practice law in Alabama. Currently, she is clerking on the United States Court of Appeals for the Armed Forces in Washington, D.C. Any opinions contained in this interview are entirely her own and are based on her impressions formed while watching the oral arguments in the case.

The following is a snippet of a conversation between Briley Hughes and Sarah Jackson.


Briley Hughes: Thanks for joining me today, Sarah. Let’s get down to brass tacks right away. What exactly is this case and how did it end up at the Supreme Court?

Sarah Jackson: In 2012, David Mullins and Charlie Craig went to Masterpiece Cakeshop in Colorado to discuss the creation and purchase of a custom-made wedding cake with Mr. Jack Phillips, the owner of the bakery. The couple wanted this cake for their wedding reception that would occur in Colorado. When Mr. Phillips learned the two men wanted the cake for a same-sex wedding celebration, he told them he did not create custom cakes for same-sex weddings but that he would sell them anything else in his store. The two men brought a civil action against Mr. Phillips alleging he had violated Colorado’s public accommodations statute prohibiting businesses from discriminating against people on the basis of their sexual orientation, among other things.

Mr. Phillips lost the original case on a motion for summary judgment by the couple. Summary judgment occurs after the parties obtain evidence but before a full trial on a case, when one party (here, the same-sex couple) argues that, based on the evidence, there is no “genuine issue of material fact” in the case and the court should rule in their favor. Essentially, this means that the couple believed there was no dispute here and a full trial would be unnecessary – they were a same-sex couple and Mr. Phillips refused to serve them despite a statute prohibiting him from discriminating against them based on their sexual orientation. The court granted summary judgment to the couple, and Mr. Phillips appealed the decision to the higher courts within the state of Colorado, arguing that the Colorado statute would require him to create a custom cake for the couple against his religious views, thereby compelling him to express a message he fundamentally disagreed with, in violation of the free speech protection of the First Amendment of the United States Constitution.

After losing at each level in the Colorado state court system, Mr. Phillips petitioned for the United States Supreme Court to hear his case. The Supreme Court granted his petition, deciding to hear the case in June 2017, and the Court heard oral argument on the case on December 5, 2017.

Briley Hughes: Now, Sarah you were actually present for the oral argument. Can you describe the mood of each side’s supporters and what their interactions were like?

Sarah Jackson: I did not spend much time outside the courtroom after the argument, but both sides were very active. Jack Phillips’s supporters were chanting things like “Justice for Jack” and “We’ve got Jack’s back,” and the supporters for the couple were playing music over the chants while I was there. There was a great deal of hustle and bustle, though, as we left. Many people that had been in the courtroom were stopped by supporters who had been outside and wanted to ask how the arguments went. Overall, it was a very respectful demonstration outside by both sides.

Understanding the Oral Argument in Christian Baker Case

Sarah Jackson, who was one of the few present for the oral argument, provides details of what happened in the courtroom.*Any opinions contained in this interview are entirely Sarah Jackson's own and are based on her impressions formed while watching the oral arguments in the case.

Posted by Palmetto Family Council on Friday, December 8, 2017

Briley Hughes: What exactly was the purpose of the proceedings today?

Sarah Jackson: Once the Supreme Court takes a case, there’s a briefing period where all the parties and amicus curiae (non-involved parties that may have a sufficient interest in the outcome of the case) submit written arguments, or “briefs” to the Court. After the briefing period ends, the Supreme Court will hold oral argument on the case, allowing both sides to present their best arguments while also answering any questions the Justices may pose. That’s what Tuesday was for in the Masterpiece Cakeshop case.

Briley Hughes: Could you briefly explain the main tenets of each side’s arguments?

Sarah Jackson: There were four parties that argued: the bakery, the United States government, the government for the state of Colorado (where this case occurred), and the lawyer for the couple that was turned away from the bakery.

The bakery and the United States essentially argued that custom-made wedding cakes are inherently expressive, which means that the baking of the cake would be considered “expressive conduct” and fall under the free speech rights protected by the First Amendment. Because a custom-made wedding cake is created with a particular message to convey, they argued, requiring a baker to provide that cake for a wedding that goes against the message the bakery wishes to convey (in this case, that marriage is between one man and one woman and should be celebrated as such) essentially changes the expression of the cake artist in a way that violates the First Amendment.

On the other hand, Colorado and the couple (represented by the ACLU) argued that the bakery’s refusal to serve the couple was discrimination by sexual orientation or identity, in violation of Colorado’s antidiscrimination statute prohibiting discrimination based on things like gender, race, sexual orientation, disability, religion, and creed. They argued that even if custom-cakes are expressive, bakeries cannot be permitted to refuse the products to a same-sex couple that the bakeries would provide to heterosexual couples. They also argued that allowing a religious objector to same-sex marriage to turn away the wedding business of a same-sex couple opens the door to those who claim to have a sincerely held belief against interracial marriage, for instance, to turn away those couples as well. Essentially, they argued that an exception for the bakery here, or ruling that the bakery’s First Amendment rights outweighs the application of Colorado’s antidiscrimination statute, erodes the ground the antidiscrimination statute covers and renders it ineffective.

Briley Hughes: What is your sense of how the justices will decide the case?

Sarah Jackson: Thinking back on the questions asked by each Justice, I think the case could be close, possibly even a 5-4 decision. I am not sure how it will turn out, but I wouldn’t be surprised if Justice Kennedy turned out to be the swing vote and wrote for the Court.

Briley Hughes: What are the biggest implications for religious freedom in this case?

Sarah Jackson: This case could determine how wedding vendors with religious objections to same-sex marriage approach their businesses. For instance, if there is a broad conclusion that any commercial business that serves weddings must extend the business to cover same-sex weddings, if they serve heterosexual weddings, in states that have statutes similar to Colorado’s, wedding vendors like Mr. Jack Phillips in this case may have to make difficult choices as to whether to provide their services for any weddings. For vendors that serve weddings exclusively, this could be the decision between staying in business or withdrawing from the market entirely. Essentially, a decision like this could result in a great deal of soul-searching for the religious objectors to same-sex marriage.

More broadly, if the bakery loses this case, the message sent is likely one that a person’s religious views must stop at the church door, so to speak. The Supreme Court has been very careful in the past not to evaluate religious doctrine and to protect religious places, but, depending on how it is addressed, a decision against the bakery in this case could mean, in essence, that although religious people may believe what they wish at any time, the government may limit how they act on those beliefs outside the house of worship itself.

Briley Hughes: When can we expect to get a decision from the High Court?

Sarah Jackson: I would say we shouldn’t expect a decision any time soon. The Supreme Court’s term runs from October-June each year, so many decisions come out during the month of June as the Court essentially closes up shop for a few months. Historically, the big cases involving LGBT rights (Lawrence, Windsor, Obergefell) came in May or June right at the end of the Court’s term.

Briley Hughes: Excellent. Thanks for your time and insight, Sarah.

Briley Hughes

Briley Hughes

Communications Director

Sarah Jackson

Sarah Jackson

Clerk, U.S. Court of Appeals for the Armed Forces

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