• Lauren Mooney


Author: Susannah Kelley, PPL Fourth Year




[December 4. 2017]

CHIEF JUSTICE KELLEY delivered the opinion of the court.

The question at hand is whether Colorado’s public accommodation law enacted to protect individuals from discrimination infringes on the constitutionally protected right to free speech and free exercise of religion.  This case exhibits the balancing individual rights and liberties under the First Amendment with the governmental interests in protecting the general public from discrimination.  We hold that the Colorado public accommodations law does not infringe upon the First Amendment.

In July of 2012, Charlie Craig and David Mullins wanted to order a custom wedding cake to celebrate their same-sex marriage from Masterpiece Cakeshop in Denver.  Colorado did not recognize same sex marriage at this time, but has allowed same-sex marriages since 2014. The store’s owner Jack Phillips, who has been a Christian for thirty-five years and believes Jesus Christ is his savior, refused to make the cake because of his religious beliefs, but offered to make Craig and Mullins any other baked good.  Phillips believes that decorating cakes is a form of art and that he can honor God through this artistic expression and believes that God would be displeased if Phillips created cakes for a same-sex marriage.  After Phillips declined to serve Craig and Mullins, they left without discussing any details of the cake.  In response, Craig and Mullins filed a charge of discrimination with the Colorado Civil Rights Division, alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act.  The Colorado Civil Rights Division held an investigation and determined probable cause for discrimination allegations on part of Masterpiece Cakeshop.  After the investigation, Craig and Mullins filed an official complaint with the Office of Administrative Courts claiming that Masterpiece had violated the Colorado Anti-Discrimination Act (CADA) § 24-34-301 to -804, C.R.S. 2014 by discriminating against them in a public place, based on their sexual orientation.  Both Masterpiece Cakeshop and Craig and Mullins filed cross-motions for summary judgement and an Administrative Law Judge from the Office of Administrative Courts issued a writ in favor of Craig and Mullins, which was confirmed by the Colorado Civil Rights Commission.  The Commission required Masterpiece to take remedial measures including comprehensive staff training and alteration of their company policies to comply with the provisions set out CADA.  The Commission further required that Masterpiece file compliance reports for two years to exhibit the remedial measures they have taken.  Masterpiece refused to comply with the Commission's orders and instead exited the wedding cake industry and appealed the decision.  The Colorado Court of Appeals subsequently affirmed the ruling of the Commission in favor of Craig and Mullins. The Colorado Supreme Court denied review.  We affirm the decision of the Colorado Court of Appeals.

Colorado is one of twenty-one states which have anti-discrimination laws against sexual orientation: the Colorado Anti-Discrimination Act (CADA) is a public accommodations law which prohibits businesses open to the public from discriminating against their customers on the basis of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry §24-34-601(2), C.R.S. 2014.  CADA defines a public accommodation as any place engaged in business of sales, services, privileges, facilities, advantages, or accommodation to the public.  The act defines sexual orientation as “any an individual’s orientation towards heterosexuality, homosexuality, bisexuality, or transgender status or another individual’s perception thereof” § 24-34-301(7), C.R.S. 2014.  Any violation of the Act authorizes the Colorado Civil Rights Commission to require actors engaged in discrimination to rehire, reinstate, or provide back to members discriminated against, and can require the agent to make reports of compliance with the commission § 24-34-605(7), C.R.S. 2014.  Phillips and Masterpiece do not dispute any material facts.  Both parties acknowledge that the bakery is a public space, and that Masterpiece refused Craig and Mullins’ service because of their intention to engage in a same-sex marriage.  

Masterpiece appealed the decision of the Colorado Court of Appeals on the basis of the free exercise claim and the freedom of expression claim.  Masterpiece argues that Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995) is the controlling case today and that CADA violates their right to free exercise and freedom of expression.  We affirm the decision of the Colorado Court of Appeals and instead find Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (hereafter FAIR) to be the controlling case at hand to determine freedom of exercise claim.  We decline Masterpiece’s request to apply strict scrutiny to the freedom of religion claim and instead conclude that the Colorado Anti-Discrimination Act is a neutral law of general applicability, thus not warranting higher judicial scrutiny.  We affirm the decision of the lower court.

To begin, Petitioner Masterpiece appealed the decision of the commission and asked the courts to distinguish between their opposition to same-sex marriage and discrimination against individuals based on their sexual orientation.  Masterpiece contends that their refusal to serve Craig and Mullins was because of Craig and Mullins’ intended conduct of entering into marriage with a same-sex partner, which effectively does not violate CADA.  We decline to make this differentiation and find that the lower court rightly equated the status and the conduct, which is inextricable conduct here.

We now address Petitioner’s main claim that the CADAs cease and desist order violates their right to expression by compelling Masterpiece to convey celebratory messages about same-sex marriage contrary to Petitioner’s religious beliefs.  Masterpiece claims that wedding cakes inherently convey celebration of marriage and that the cease and desist order compels Masterpiece to endorse same-sex marriage.  We disagree.  Masterpiece defers to West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943), in an attempt to show the nature of the compulsion by the cease and desist order.  Barnette held that West Virginia could not implement a mandatory flag salutation and require students and teachers to speak the government’s message through a flag salute.  The court in Barnette held that saluting the flag is a “primitive” form of utterance, and that such symbolism is an effective form of communication.  Id., at 663.  Barnette held that the “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."  Id., at 642.  Petitioner here urges the court to defer to Barnette to show that compliance with CADA constitutes compelled speech because CADA requires Petitioner to create wedding cakes which symbolize acceptance of same-sex marriage.  Petitioner argues that the creation of their wedding cakes constitutes expressive conduct and that this conduct is being infringed upon through their compliance with the law.  We disagree with Petitioner and find that the conduct restricted under CADA does not qualify as inherently expressive conduct.  To determine if First Amendment protections are warranted, it must be determined if the conduct in question is inherently expressive.  Here we defer to City of Dallas v. Stanglin, 490 U.S. 19, 25 (1989), where it was held that the conduct itself must be deemed inherently expressive in order to be subject to First Amendment protections.  City of Dallas held age restrictions on youth activities to be constitutional under the First Amendment right to freedom of association.  The court held that “it is possible to find some kernel of expression in almost every activity a person undertakes [...] but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.”   Id., at 26.  In other words, City of Dallas determined that recreational youth dancing does not qualify as expressive conduct warranting First Amendment protections.  Similarly, Petitioner’s baking of a cake or decision not to bake a cake does not necessarily implicate conduct that is expressive.  Under United States v. O’Brien, 391 U.S. 367, 376 (1968), the court previously rejected a similar claim that “freedom of expression [under] the First Amendment [...] includes all modes of "communication of ideas by conduct.” Id., at 376.  O’Brien held that it cannot define “conduct [...] labeled [as] "speech" whenever the person engaging in the conduct intends thereby to express an idea.”  Id., at 376.  We hold that not all communicative conduct intending to convey ideas necessitate speech.  We apply this logic to Masterpiece and see that Masterpiece’s intention to view their cakes as expressive conduct is not enough to automatically qualify as inherently expressive conduct.  The Court further held in O’Brien that “when "speech" and "non-speech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment freedoms.”  Id., at 367.  The government can thus regulate communicative conduct if it has an important interest in regulating the suppression of the message.  CADA was enacted to protect individuals from being discriminated against in the public sphere.  Following the precedent set in O’Brien, we see that even if the nature of Petitioner’s claims were to be deemed communicative, there is an important interest in regulating the suppression of discrimination which allows for the regulation of communicative conduct per O’Brien.  To determine if conduct is inherently expressive following O’Brien, it is appropriate to look to Texas v. Johnson, 491 U.S. 397, 404 (1989). Texas held, citing Spence v. Washington, 418 U.S. 405, 410-11 (1974) that when deciding if First Amendment protections are applicable, there must be "[a]n intent to convey a particularized message [...], and the likelihood [must be] great that the message would be understood by those who viewed it." Id., at 491.  In Texas, the conduct of burning a flag was found to be “expressive” conduct and “overtly political” in nature. Id., at 491.  To establish if Petitioner’s conduct is inherently expressive, we see if a reasonably prudent person would deem Petitioner's’ conduct described as expressive.  Petitioner argues that the controlling case at bar is Hurley, supra, which held that a private parade organization was not required to include members in a parade who were imparting a message which the parade organizers were not wishing to convey.   In Hurley, the court held that the “parade’s overall message is distilled from the individual presentations along the way, and each unit’s expression is perceived by spectators as part of the whole.” Id., at 577.  We reject Petitioner’s claim here and distinguish Hurley from Masterpiece: the inclusion of the additional parade marchers would likely attribute to the overall message of the parade, because of the “inherent expressiveness of marching to make a point.”  Id., at 577.  Following Texas, it is highly unlikely that the commercial sale of wedding cakes to same-sex couples will cause the public to see Petitioner as endorsing same-sex marriage.

It is thus appropriate to look to FAIR, supra to determine if conduct is reasonably perceived as expressive.  FAIR argued that the forced inclusion of military recruiters on campus made them decide whether they should disseminate the recruiter's message or ensure their federal funding.  We previously rejected this argument and held that students “can appreciate the difference between speech a school sponsors and speech the school permits because [it is] legally required to do so.” Id., at 65.  Further, the law schools “remain free under the statute to express whatever views they may have on the military’s congressionally mandated employment policy, all the while retaining eligibility for federal funds.”  Id., at 58.  

Similarly, CADA does not require Masterpiece to endorse same-sex marriage; it merely requires that Masterpiece does not discriminate against potential customers in violation of CADA.  When applying the logic of FAIR to Masterpiece, we find it unlikely that the public would view Masterpieces’ adherence to CADA as an expression of their own religious beliefs.  We identify the claim of compelled speech and first determine if the conduct compelled through CADA conveys a particularized message under Texas and the likelihood that observers would attribute this message to Masterpiece.  Following the precedent, we see in FAIR, we can reasonably infer that the public would not attribute compliance with a law to personal beliefs.  The lower court concluded that the messages conveyed by wedding cakes are more likely to be attributed to the customer than to Masterpiece.  We agree and again look to FAIR, which established that the public would likely infer that adherence to the law is a reflection of business practices rather than endorsement of same-sex marriage.  We find that the commercial sale of a cake is not an expressive conduct or an act, but rather a business interaction.  We further emphasize that Petitioner declined to bake Craig and Mullins’ cake before discussing any details of it, thus showing no expressive nature of the cake in question.  When applying this logic to the precedent found in Barnett's, we find that CADA does not require Masterpiece to engage in compelled expressive conduct in violation of Masterpiece’s First Amendment Rights.  We are thus not obliged to prove a governmental interest in enforcing CADA, per O’Brien, because the conduct Masterpiece claims cannot be qualified as expressive.  We affirm the lower court’s decision and hold that the cease and desist claim under CADA does not violate Petitioner’s right to free exercise.

We now address the claim that CADA unconstitutionally infringes on the right to free exercise of religion.  The controlling case to determine free exercise of religion is Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).  

Under Smith, we find CADA to be a neutral law of general applicability, thus not in violation of the First Amendment.  Petitioners claim that the Commission’s cease and desist order is subject to strict scrutiny under Smith, and violates the First Amendment.  We disagree and find that under Smith, the Commission’s order is subject to the rational basis test.  Smith held that the state could deny individuals unemployment benefits for using peyote, even though the drug was used as part of a religious ritual.  The court found that allowing religious exemptions for every state law “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.”  Id., 888.  It was held that the Free Exercise Clause “does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).” Id., 879.  Laws that are neutral and generally applicable must only be rationally related to a legitimate governmental interest.  Yet, if the burden on religious practice is not neutral or generally applicable as Petitioner claims, the law is subject to strict judicial scrutiny and must be “motivated [...] by a compelling state interest and by means narrowly tailored to achieve that interest.”  Id., 894.  To show general applicability, we look to Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993), which struck down a law forbidding ritual animal sacrifice that was not religiously neutral nor generally applicable.

The ordinance included religious words, indicating a lack of religious neutrality, and specified exemptions for the killing of animals not related to religious conduct, thereby directly targeting religious conduct.  Consequently, the ordinance was subject to strict scrutiny under which it failed to withstand judicial muster.  Church of Lukumi held that “if the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral.”  Id., at 531-32.  A law is not generally applicable when it imposes burdens on religiously motivated conduct while permitting exemptions for secular conduct or for favored religions.  Id., at 543.  Petitioners claims that CADA, like the ordinance in Church of Lukumi, is neither religiously neutral nor generally applicable and urges the Act to be reviewed under strict scrutiny.  Masterpiece claims that the exceptions which CADA allows for deems the Act not generally applicable.  CADA § 24-34-601(1), states that “places of public accommodation” do not include places of religious worship.  Petitioner claims that this exception to CADA proves CADA is a non-neutral law because it exempts religious places of accommodation.  Masterpiece further claims that § 24-34-601(3) of the Act which allows for restrictions based on a bona fide relationship to further argue that the Act is not generally applicable.  We disagree and find that the Act is both neutral and generally applicable, despite the exemptions.  A law must not apply to every single individual for it to be generally applicable.  Applying Church of Lukumi, the law is not generally applicable if “governmental interests it seeks to advance are worthy of being pursued only against conduct with a religious motivation.”  Id., at 542-43.  We find that CADA does not make the distinctions to go against religious conduct, but rather makes distinctions to accommodate religious conduct.  We find that the bona fide exceptions that CADA allows for do not discriminate individuals on a basis of religion.  The law applies equally to conduct that is religious and nonreligious.  The law is neutral because the Act does not restrict practices based on their religious motivations, following the precedent set in Church of Lukumi. Further, Petitioners do not run a religious establishment, nor does CADA require Petitioners to take any particular religious stance.  Masterpiece Cakeshop is not a primary religious establishment. It is merely a public discrimination ordinance which we find as neutral and generally applicable, not intended to impede upon religious conduct.  

Petitioners claim a hybrid-rights claim under Smith, supra where “the only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional protections.”  Id., 872.  Petitioner attempts to stake both freedom of exercise and expression violations to satisfy the two-prong hybrid rights requirement in Smith to allow for higher judicial scrutiny.  Under Smith, we require both constitutional claims under the First Amendment to be present.  However, as we previously established, the act of baking a cake is not inherently expressive and not warranting of protection under the First Amendment.  The hybrid rights exception to warrant the application of strict scrutiny thus does not apply.  Instead, we find rational basis to be the appropriate standard of review.  Under Smith, if the law in question is neutral and generally applicable, it must be rationally related to a legitimate government interest.  Colorado’s interest in enacting CADA was to eliminate discrimination; discrimination has been qualified as a compelling governmental interest by this court.  Citing Hurley, supra, this court has held that public accommodation laws like the one enacted in Colorado “are well within the State's usual power to enact when a legislature has reason to believe that a given group is the target of discrimination, and they do not, as a general matter, violate the First or Fourteenth Amendments.”  Id., 572.  Following the precedent set here, Colorado clearly has a legitimate government interest in preventing discrimination.  The Colorado Anti-Discrimination Act rationally achieves this goal by prohibiting discrimination based on categories such as race, disability, and sexual orientation.  We thus find that CADA holds under judicial scrutiny when evaluated under the rational basis test, and find CADA to be rationally related to a legitimate government interest.  We affirm the decision of the lower court and find that the Colorado Anti-Discrimination Act does not violate the freedom of religion of Masterpiece Cakeshop.

We hold that neither the freedom of expression, nor the freedom of religion of the Petitioner as guaranteed through the First Amendment to the Constitution, have been violated through the enactment of the Colorado Anti-Discrimination Act.  The judgement of the Colorado Court of Appeals is affirmed.

It is so ordered.


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