Into the Oven

Experts weigh in on implications at 11th hour before Masterpiece Cakeshop arguments

One wedding cake, five years, two prior rulings, and three First Amendment clauses. This week, the U.S. Supreme Court will finally hear oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission. In addition to answering the question presented in the case, whether Masterpiece Cakeshop owner Jack Phillips can receive an exemption from Colorado’s Anti-Discrimination Act to refuse to make a cake for a same-sex wedding based on First Amendment protections for religious freedom and freedom of expression, the court’s ultimate decision has the potential to address a host of more nebulous civil liberties issues, with each potential ruling carrying its own set of implications.

Masterpiece Cakeshop v. Colorado Civil Rights Commission has spotlighted three clauses of the First Amendment: Free speech, free exercise and establishment. Each has brought a web of arguments and questions for the Supreme Court to possibly address. Does Phillips’ work as a cake maker constitute protected speech? Is there a difference between a generic cake and one with a custom message? Does Phillips participate in a religious ceremony by making a wedding cake, as he claims a wedding ceremony is an inherently religious event? And would any decision about one civil liberty at the expense of another open the proverbial floodgates for the erosion of others?

Steven Collis, a partner at Holland & Hart who has expertise in religious liberty and other First Amendment matters, said he does not believe the “parade of horribles” that each side is predicting should the decision not go how they hope, a mass erosion of civil liberties, is likely to happen. But he acknowledged the case law surrounding all three clauses at issue in the Masterpiece Cakeshop case is thorny, calling it a “muddled mess.” Collis explained he believes whether the Supreme Court’s ruling helps to clarify any of it will depend on how narrowly or broadly the ruling sweeps. Chief Justice John Roberts will likely push for as narrow a ruling as possible to build consensus and preserve the legitimacy of the court, he said, though a narrow decision will likely matter less should it be a 5-4 vote.

“My experience is really expansive rulings tend not to provide as much clarity as they do just provide more of a mess,” Collis said, adding that broad rulings bring a host of possibilities for interpreting them.

To read this story and other complete articles featured in the December 4, 2017 print edition of Law Week Colorado, copies are available for purchase online.