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“I’m Sorry, But I Will Not Make Your Wedding Cake…” Discrimination or Religious Objection? New Conflicts in a Changing Society

In Obergefell v. Hodges, the Supreme Court held that “the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, couples of the same-sex may not be deprived of that right and that liberty.”[1] The Court required that all States acknowledge the validity of same-sex marriages performed out of State.[2] It also recognized that this new doctrine is incongruent with the beliefs and consciences of many.[3] To address this issue, the Court stated that the First Amendment ensures that individuals and organizations, whether based on religious or secular beliefs, may continue to advocate with utmost sincere conviction, their position that same-sex marriage should not be supported.[4] It reasoned that “[t]he First Amendment ensures that religious organizations and persons…as well as organizations and persons who oppose same-sex marriage for other reasons…are given proper protection as they seek to teach and express the principles that are so fulfilling and so central to their lives.”[5] This First Amendment protection will soon be put to the test for private business owners across the country.

In short, a same-sex couple – Charlie Craig and David Mullins – asked Jack Phillips, owner of Masterpiece Cakeshop, Inc. (Masterpiece), to make them a wedding cake to celebrate their newfound liberty. [6]  Mr. Phillips politely told the couple no, because doing so would conflict with his sincerely held beliefs, protected by the First Amendment. [7]  He did tell the couple, however, that he would be happy to bake and sell them birthday cakes, cookies, brownies, or any other items not in conflict with his beliefs – just not a wedding cake.[8] Mr. Phillips is a Christian who believes in Jesus Christ and the teachings of the Bible, and manifests those teachings in faith through his daily works as an artist and baker. [9] He does not produce adult-themed cakes, Halloween cakes, same-sex marriage cakes, or any other cakes that conflict with his religious beliefs.[10] He stated in his interview, “I participate in the event for which I’m making the cake…and if I’m forced to make a cake for homosexual couples, I would be compelled…against my will…to make a statement I don’t want to make.”[11] The couple then sued Masterpiece under a Colorado law forbidding discrimination based on sexual orientation, winning in the lower courts.[12] The United States Supreme Court has granted Masterpiece’s Petition for Writ of Certiorari, and will hear the case sometime in the near future.[13]

In essence, the Court must decide three very difficult questions: (1) Whose view, if either, will take precedent? (2) In what manner may those views be lawfully carried out? And (3), if the First Amendment allows for the practice of conflicting beliefs to coexist, how can one be penalized and not the other? The First Amendment allows every individual the right to practice their sincerely held religious beliefs; the right to associate or disassociate with individuals based on those beliefs; and the right to free speech, notwithstanding the agreeability of those beliefs.[14] In other words, we have the right to disagree with one another, despite the fact the doing so may offend the feelings of the other. It will be interesting to see if the Court will make such an action punishable by law.

[1] Obergefell v. Hodges, S. Ct. 2584, 2604 (2015).

[2] Id. at 2607.

[3] Id.

[4] Id.

[5] Id.

[6] Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115, ¶ 3, 370 P.3d 272, 276

[7] Id.

[8] Mike Shum & Ashley Maas, A Clash of Cake and Faith, The New York Times (Dec. 15, 2014), (explaining Philips’s reasons for refusing to make cakes for same-sex weddings in a video interview).

[9] Id.

[10] Id.

[11] Id.

[12] See Craig, 2015 COA at 115.

[13] Adam Liptak, Justices to Hear Case on Religious Objections to Same-Sex Marriage, The New York Times, (June 26, 2017), See also S. Ct. of the U.S. Blog, (referencing docket number 16-111).

[14] U.S. Const. amend. I; see Hodges, supra note 1; and see generally George J. Wartman, Freedom of Discrimination?: The Conflict Between Public Accommodations’ Freedom Association And State Anti-Descrimination Laws, 37 J. Marshall L. Rev. 125 (2003) (discussing the case of Boy Scouts of America v. Dale, where the Court held that forced inclusion or recognition of unwanted persons – i.e. homosexuals – in group violates group’s freedom of expressive association if the presence of that person affects in a significant way, the group’s ability to advocate public or private viewpoints).