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The co-owner of Masterpiece cakeshop, Jack Phillips, refused to sell a wedding-cake to a same sex couple. Phillips did not want to sell them the wedding-cake because supporting their marriage was against his religious beliefs. The same sex couple decided to file a suit in the Colorado state court, arguing that there was a Colorado civil-rights law that required Phillips to provide his cake service to all customers regardless of their sexual orientation. Phillips responded that the First Amendment, free speech, and free exercise clause, of the United States Constitution which prohibits Colorado from enforcing its civil-right laws against anyone under those circumstances. His argument was that he is a wedding-cake artist, and the state cannot force him to support same sex weddings or weddings that he does not want to support because of his religion. The issue with this case is “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 1st amendment” (Howard, 2017). This paper analyzes Masterpiece Cakeshop v. Colorado Civil-Rights Commission based on the precedent set in Employment Division v. Smith, Burwell v. Hobby Lobby, Washington v. Arlene’s Flowers, and Sweet Cakes by Melissa v. The Oregon Bureau of Labor and Industries. This paper makes the case that in Masterpiece Cakeshop the Supreme Court should focus more on the free speech aspect that the religious one, given the court’s decision in Sweet Cakes by Melissa and Arlene’s Flowers.
Based on the 1990 ruling in Employment Division v. Smith, Phillips cannot argue that the Colorado’s public accommodations law was passed with the intent to burden religious practices. In Employment Division, two Native American employees were fired from their jobs as drug counselors after using peyote for a religious ceremony. They sued Oregon, claiming that their rights to free exercise were being violated. The court ruling was a 6-3 vote, ruling that Oregon had not violated their constitutional rights, maintaining that religious individuals were not exempt from generally applicable state laws. In Masterpiece, with the ruling of Employment Division, “Colorado does not have a Religious Freedom Restoration Act that might provide statutory redress to people who believe that neutral laws substantially burden their religious exercise” (Segall, 2017). The Supreme Court held as well that a religiously neutral law can violate free exercise clause if the main issue of the law is to disapprove religion and/or if the law is executed by the state to discriminate against religion. “Philips argues that the commission applied its civil-rights law on a religiously discriminatory basis” (Segal, 2017). Phillips believes that the state has selectively applied the civil-rights law to artistic professionals who have religious objection to same sex marriage, while allowing other expressive professionals to refuse customers who want to express anti same sex marriage messages.
These next two cases, at the state level, could help rule against Phillip in his free speech, and free exercise clause claim. In Washington v. Arlene’s Flowers, a florist who refused to provide flowers for a gay couple’s wedding was sued by the couple for violating anti-discrimination laws. The gay couple did not have a chance to say how they wanted the arrangements or if the flowers would be picked up at her shop instead of dropping them off at the wedding. The florist argued that her constitutional rights to freedom of speech, religion, expression, and association were violated by the anti-discrimination laws. Arlene’s Flowers argues this because she acted consistent with her faith and beliefs, and she had the right to decline “her creative skills to design floral arrangements for the same-sex ceremony” (Alliance Defending Freedom, 2018). “The court rejected this claim, holding that floral arrangements are not a protected form of free speech” (Sibal, 2018).
Another similar case was Sweet Cakes by Melissa v. The Oregon Bureau of Labor and Industries. The background on this case is just like Masterpiece Cakeshop v. Colorado Civil-Rights Commission, and it had the same ruling as Arlene’s Flowers. Sweet Cakes by Melissa refused to sell a cake for a same-sex couple because she considered it a violation of her first amendment right. “Under Oregon law, businesses cannot discriminate based on sexual orientation, just as they cannot turn away customers away because of race, sex, disability, age or religion” (LaCapria, 2018).If both of these cases said that the free exercise rights of Arlene’s Flowers, and Cakes by Melissa were not violated, then there is a possibility that the Supreme Court could state that Phillips’ free clause exercise was not violated as well. They could also determine that his freedom of religion was not violated either, which would determine that he must sell to all same-sex couples.
Based on the ruling of Burwell v. Hobby Lobby, Phillips will have an easier time arguing his freedom of religion right, which is to not sell wedding-cakes to same sex couples. With Burwell v. Hobby Lobby, Evangelic Christian Green family filed a lawsuit against the government because they felt the government was violating their right to free exercise. Before this case, the Affordable Care Act included a contraceptive mandate, which required the employers to provide birth control or female employees. The Green family took their case to the court, arguing that the use of contraceptives was against their religious beliefs, and having to be forced to provide them would violate their First Amendment rights. In a 5-4 decision, the Supreme Court Ruled in favor of the Green family and struck down the contraceptive mandate. With Masterpiece, this case could be used in Phillips favor and could serve precedent. Since they gave Hobby Lobby the right to not provide employers birth control since because of their religion, then they could give Masterpiece the right to not sell wedding-cakes to same sex couples because it is against his religion.
Phillips is wrong on his free-exercise-of religion claims, and the Supreme Court should rule against him. The commissions’ actions were never directed towards his religious beliefs, they were directed at Philips’ refusal to sell a wedding-cake to a customer based, in the commissions’ view, on the customers’ sexual orientation. The Colorado’s civil-rights law does not unconstitutionally burden the free exercise of religion nor does it discriminate against Phillips because of his religion. There are several states that have made it illegal for a business to refuse to provide their services to customers based on race, gender, national origin, and sexual orientation. Discrimination because of religion or personal belief is still discrimination, and it should not be protected. Phillips also claims that the customized cakes he makes for weddings are expressive, “and that the government cannot force him to adopt a government-required message” (Segal, 2017). “It seems clear that a pro-life baker could not be forced by the state to provide a cake for a Planned Parenthood office party with the inscription “Pro-Choice” (Segal, 2017). Citizens United established that corporations have freedom of speech rights. That is the claim that Phillips is making, but it is debatable whether Phillips’ wedding-cakes are communicative enough to have the same protection. The Colorado Civil-Rights Commission is not concerned about Phillips’ religion; they are concerned about the refusal to serve the customers based on their sexual orientation. Phillips has all the right to express and exercise his religion, but not in any way that he would like, because he should not refuse to serve customers based on their sexual orientation. If the Supreme Court gives him the right to not sell to a customer based on sexual orientation, then everyone else who does not agree on same-sex marriage for any reason, would have that right as well to not sell their product to the customer. Overall the Supreme Court should focus mainly on the freedom of speech aspect than focusing on the religion aspect.

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