Wedding Cake Wars: Anti-Discrimination Laws and Religious Liberty

Cake makers who have refused to design cakes for same sex weddings have been sued under public accommodations or other anti-discrimination laws and held financially liable to the couples who sued them in several jurisdictions, most notably in Colorado and Oregon. Their defenses based on religious beliefs have been rejected as inapplicable when raised against a public accommodations or other state or local law that prohibits declining to serve same sex couples. One such case is now pending before the Supreme Court of the United States, which has listed the case for conference consideration multiple times, but has not yet acted on the cake maker’s petition for certiorari. Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, No. 16-111. That Petition raises the issue “whether  applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.”

This post suggests several general points that courts should evaluate when ruling on whether sincerely held religious beliefs are legally sufficient to justify a refusal to serve same sex couples.

1. The right to exercise religious beliefs is constitutionally protected across the entire nation under the First and Fourteenth Amendments. By contrast, public accommodations laws are statutory, and (according to the ACLU),  a majority of states do not prohibit discriminating against same sex couples in their public accommodations laws, although many local  governmental entities do so. This raises the question as to what circumstances may justify subordinating a constitutionally protected right to a statutory right.

2. In many of the wedding cake cases, the same-sex couples had ready access without additional cost to other cake makers who were willing to custom design a wedding cake for them, in at least two cases at no cost to the couples. Is it therefore legally justifiable to subordinate sincerely held and constitutionally protected religious beliefs to a same sex couple’s statutory rights when the discrimination undoubtedly creates at least psychic or dignitary harm to the couple, but is devoid of any economic impact on them, and leaves them with easy access to the product elsewhere?

3. The Masterpiece Cakeshop petition raises an additional point, contending that forcing an “artist” to create a custom piece for a prospective customer constitutes compelled speech and thus violates the artist’s First Amendment rights of free speech and freedom of expression, in addition to his right to free exercise of his religious beliefs. (It is worth noting that the Masterpiece Cakeshop owner has consistently described himself as “a cake artist,” and has written that he is “cheerfully willing” to sell one of his “ready-made” cakes to anyone.) On this point, consider the case of a commercial portrait artist who is asked to paint a portrait of either Donald Trump or Hillary Clinton, and who feels that the subject in question is either a fascist or socialist that he sincerely and violently despises. Would he or she be required to paint that portrait?

These wedding cake cases present significant issues involving the conflicting rights of both the same-sex couples and the cake makers who declined to serve them. The same or similar issues are likewise presented in other contexts, such as those involving photographers, graphic designers, florists, and even pharmacists. (See, for example, my June 28, 2016 post on the Supreme Court’s decision, over a powerful dissent, not to grant review in a pharmacist case, Stormans, Inc. v. Wiesman.)

Given the importance of the rights of both parties, the complexity of the issues presented, and the likelihood that the issues will recur in multiple contexts, the Supreme Court should accept the Masterpiece Cakeshop case for review, and resolve each of the issues outlined in this post.


ACLU, “Non-Discrimination Laws: State by State Information – Map,”, accessed on March 26, 2017.

Jack Phillips, “Why I’m asking the U.S. Supreme Court to protect artistic freedom,”, published on July 22, 2016.










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