Masterpiece Cakeshop: Crafting a Minimalist Decision

The Masterpiece Cakeshop case presents issues of free speech and free exercise of religion which are important, controversial, and divisive. Almost any decision on these issues will result in a public and academic outcry by whichever side fails to prevail. The court should therefore consider crafting a narrow opinion which will garner the greatest number of justices who will join it.

The Roberts Court has a significant history of avoiding these problems by delivering carefully limited decisions. To take just one example, in Northwest Austin Municipal Utility District v. Holder (2009), a decision on the constitutionality of one part of the Voting Rights Act of 1965, the court interpreted the preclearance provision at issue not to apply to the entity challenging the constitutionality of the Act, thereby inviting Congress to legislate a new coverage formula. More recently, in Trump v. International Refugee Assistance Project (2017), the court granted a stay of injunctions issued by lower courts against the Trump Administration’s Executive Order on immigration without addressing the anti-Muslim bias claims which lay at the heart of the lower court decisions, and without deciding whether the Trump Administration had made a showing of likelihood of success on the merits. Given the fact that the Executive Order at issue may expire before the court hears the case on the merits, this approach avoided deciding a controversial issue regarding executive power in the context of a claim of religious discrimination.

A final recent example is the court’s decision in Trinity Lutheran  Church v. Comer (2017), where it ruled that Missouri could not discriminate against a church, because of its status as a religious institution, by disqualifying it from participating in a scrap tire program to resurface playgrounds. The court majority carefully avoided deciding, or even discussing, claims that the authority relied upon to disqualify the church was a so-called “Blaine Amendment,” which four members of the court had previously held was the product of religious bias against Roman Catholics.

The court should adopt a similar approach in Masterpiece Cakeshop. Here are some steps to do so.

  1. Limit any decision to the compelled speech issue. The briefs in the case raise First Amendment issues under both the free speech and free exercise of religion clauses. Free exercise claims have often resulted in sharply divided courts, with strongly worded dissents. In these cases, it has often been difficult to get a fifth vote in support of an opinion of a court. By contrast, the free speech decisions of the Roberts Court have been nearly unanimous.
  2. Find that the “cake artist” is engaged in speech.  Jack Phillips, the owner of Masterpiece Cakeshop, has a good case here. His appellate attorneys rely upon the following facts, among others: Mr. Phillips’ shop has a logo displaying an artistic palate with a paintbrush and whisk; it displays a drawing of the owner sketching himself inside the shop; Phillips uses artistic skills in creating cakes; he designs each wedding cake individually with meetings with the couples; and he markets himself as a “cake artist.” In addition, he utilizes artistic talents such as sketching; he designs ornamental features; and he decorates his cakes using painting, airbrushing, and sculpting techniques. Since courts have previously recognized such persons as tattooists as artists, characterizing Phillips as such should command a majority of the court.
  3. Limit the artist holding. The court should rely heavily upon the facts just enumerated regarding Mr. Phillips. It should not, for example, attempt to define just exactly who would qualify as an artist under the Free Speech Clause, nor volunteer any opinion on off-the-shelf merchandise. This was the approach followed in the Hobby Lobby case (Burwell v. Hobby Lobby (2014), where the court limited its holding to closely held corporate entities, and did not express any opinion regarding publicly held corporations.
  4. Do not contest Phillips’ beliefs.  In ruling against Philips, the Colorado courts rejected his contention that designing a cake for a same-sex wedding would suggest his support of such unions. Those courts adopted a “reasonable observer” approach, contending that such a hypothetical observer (in Colorado? in other states?) would not see making a cake as endorsing the marriage, and that Phillips therefore was not being compelled to speak in favor of same-sex marriage. This runs contrary to the approach taken by the court in its RFRA decisions. In both Burwell v. Hobby Lobby, and Holt v. Hobbs (2015), the court emphasized the need to look at the particular claimant before the court, and held that the protections of the statute were “not limited to beliefs which are shared by all of the members of a religious sect.” While RFRA cases are not constitutional decisions, there is no compelling basis to use a different standard in free speech cases.
  5. Compare the harms to those presented in free speech cases.  To the extent that Masterpiece Cakeshop is decided on free speech grounds, a strong case can be made that the dignitary and psychic harms caused to the same-sex couple by Phillip’s refusal to design a cake for their wedding are no greater than those found not to be protected against governmental action in other cases. To take just one example, the recent decision in Matal v. Tam (2017) found it unconstitutional to deny trademark registration to the name, “The Slants,” even though the Patent and Trademark Office had explicitly found that “there is…a substantial composite of persons who find the term in the applied-for mark offensive.” This was because it was associated with a negative view of Asian-Americans, as other terms are used to disparage those of African, Italian, and Irish ancestry.
  6. Let the free exercise claims develop further in the lower courts.  The issues raised by the free exercise claims in Masterpiece Cakeshop and several other cases involving such art forms as photography, as well as those involving non-artistic claims, are controversial and divisive. As such, the court should steer away from making a premature adjudication before the issues are developed further in the lower courts. Failure to do so would expose the court to the criticism that it foreclosed and froze additional consideration of these important issues which might work to reach an acceptable compromise. This is the same criticism often leveled at the court for its decisions finding a constitutional right to abortion (Roe v. Wade (1973)), and to same-sex marriage (Obergefell v. Hodges (2015).)

The Masterpiece Cakeshop case will be an important first step in resolving the contentious and divisive issues posed by a conflict between constitutional protections accorded by the First Amendment and statutory prohibitions against same-sex discrimination. In taking that first step, the court should tread lightly.


Yet another path to a minimalist decision, and one which might possibly secure a fifth vote for the cake designer, would be to rely upon an equal protection argument. The case record indicates that the Colorado Civil Rights Commission in three other cases found no discrimination where other cake makers refused to create custom cakes for Christians who wished to use the cakes to criticize same-sex marriage and relationships. Such an equal protection approach mirrors that taken by Justice O’Connor in her concurring opinion in Lawrence v. Texas (2003). There, Justice O’Connor voted to strike down criminal penalties for engaging in sodomy because the Texas law at issue only criminalized sodomy between same-sex partners.

See also Attorney General Sessions, Federal Law Protections for Religious Liberty, page 3, item 7 (October 6, 2017) (“Government may not target religious individuals or entities through discriminatory enforcement of neutral, general applicable laws.”)

SECOND UPDATE (12/5/17):

At the oral argument held today, there were some hints that, if the cake designer wins, he will do so somewhat on the minimalist lines suggested above.

First, Justice Alito specifically raised the disparate treatment issue pointed out in the Update above, where the Colorado Commission found it not to be discrimination where customers who requested cakes that expressed opposition to same-sex marriage were declined service. (Oral Argument Transcript at 58-59)

Second, Justice Kennedy, who is clearly the swing vote, employed some very strong language to accuse the Colorado Commission of hostility to religion. He stated that “tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs. And — because accommodation is, quite possible, we assume there were other shops that — other good bakery shops that were available.” ( Tr. at 62) He also focused on a remark by one of the commission members, who stated that “freedom of religion used to justify discrimination is a despicable piece of rhetoric.” (Tr. at 51) Justice Gorsuch additionally pointed out that a second commissioner,  on a commission of seven individuals, stated that “if someone has an issue with the laws impacting his personal belief system, he has to look at compromising that belief system.” (Tr. at 55)

Edward Mannino is a lawyer and historian. He is the author of Shaping America: The Supreme Court and American Society (University of South Carolina Press, 2009) and The Roberts Court and Terrorism; A Citizen’s Guide (Kindle Ebook, 2016).

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