Masterpiece Cake Shop: A Recipe for Constitutional Avoidance

Photo Credit: Courtesy of Meg

By Jonathan Zator; Staff Member (Vol. 16)

A.    An Appetizer

A case is a meal, and oral argument is the dessert. This is an apt metaphor for a case about a cake. Oral argument is “the last thing the Court sees and consumes before it either shows its appreciation for the hearty meal” or “chomps [the] arguments to bits.” In the oral argument for Masterpiece Cakeshop vs. Colorado Civil Rights Commission, the Justices enjoyed a hearty helping of dessert. Now, the Justices should write the most limited review of the meal possible, or else risk destroying the entire restaurant.

B.    The Meal So Far

In July 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop in Lakewood, CO, and requested that its owner, Jack Phillips, design and create a cake for their wedding. Phillips declined to do so. As a rule, he does not create wedding cakes for same-sex weddings because of his Christian religious beliefs. Specifically, decorating cakes is a form of art through which he can honor God. Phillips believes that making Craig and Mullins’ cake would displease God.

Craig and Mullins filed discrimination charges. Under the Colorado Anti-Discrimination Act (CADA), §§ 24-34-301 to -804, C.R.S. 2014, they alleged discrimination based on sexual orientation. An Administrative Law Judge issued a written order in favor of Craig and Mullins. The Colorado Civil Rights Commission affirmed this decision. On appeal, the Colorado Court of Appeals then affirmed the Commission’s ruling.

The ultimate issue is whether compelling a religious cake maker to design and make a cake for a same-sex wedding violates the baker’s free speech or free exercise rights.

C.     The Dessert

The Justices wanted a slice of this case. On December 5, 2017, the Court heard arguments from petitioner Masterpiece Cakeshop, Ltd. and respondent Colorado Civil Rights Commission. Kristen Waggoner and U.S. Solicitor General Noel Francisco represented Masterpiece. Colorado Solicitor General Frederick Yarger and David Cole represented the Commission. Amy Howe provided a detailed summary of the argument.

Several Justices voiced support for Phillips. Chief Justice Roberts compared making the cake to forcing a Catholic legal services organization to give marital legal advice to a same-sex couple. Justice Alito focused on the issue that another baker could decline to create cakes opposing same-sex marriage, but Phillips could be forced to make a cake honoring a same-sex marriage. Justice Gorsuch objected to a part of the state’s order that required Phillips to provide comprehensive anti-discrimination training to his employees.

The Court’s more liberal justices mostly sided with the couple. Their questioning focused on showing that writing a ruling for Phillips would be next to impossible without, as Justice Breyer put it, “undermin[ing] every civil rights law since year two.” Justice Kennedy, when discussing the impact that a ruling for Phillips could have for the LGBT community, proposed that if Phillips wins he could place a sign to indicate that he would not bake cakes for same-sex couples, which would be “an affront to the gay community.”

A significant issue came from certain anti-religious statements. Kennedy raised a statement by a member of the Colorado Civil Rights Commission that “religious beliefs had in the past been used to justify other forms of discrimination, like slavery and the Holocaust.” The Commission member asserted it is “one of the most despicable pieces of rhetoric that people can use their religion to hurt others.” Kennedy asked that if the Justices “thought there was a significant aspect of hostility to a religion in this case” then should the Commission’s order against the baker stand? Yarder, for the Commission, responded that “absolutely, that would be a problem.” Roberts chimed in that “we’ve had this case before” when one judge on a three-judge panel was biased. Gorsuch noted that a second (two out of seven) Commission member said something along anti-religious lines. Kennedy returned to this issue later saying “tolerance is essential in a free society,” but Colorado has not been tolerant of Phillip’s religious beliefs.

D.    Reviewing the Meal: Constitutional Avoidance

A meal has many parts. Based on the dessert, Amy Rowe believes a conservative majority is leaning toward ruling for Phillips, but she did not specify on what grounds. The Court’s best option is to write a short review of the meal by following the canon of constitutional avoidance. Constitutional avoidance is the principle that the Court “should avoid ruling on constitutional issues, and resolve the cases before them on other . . . grounds.” In practice, if the Court faces different possible decisions or interpretations, the Court should decide the issue with the easy constitutional answer to avoid hard constitutional questions and questionable answers. To do otherwise would enter Dred Scott territory.

Targeting the Commission members’ anti-religious comments is the easiest and narrowest possible ruling. Based on the dessert, there are at least five, possibly up to seven, Justices displeased with the Commission’s anti-religious comments. Ruling on this narrower ground is better than entirely upholding the order (harming religious free exercise) or striking the order (hurting the LGBT community and every anti-discrimination law since year two).

This third middle-ground option can be accomplished by extending the precedent in Lukumi Babalu Aye. In that case, the Court –– unanimously –– held that a law could not be designed to target specific religious behavior. Extending that decision, to the Masterpiece case’s order, should appeal to both the more liberal and more conservative Justices. If the Court strikes only the Commission’s order because of the anti-religious comments, then deciding for Phillip and upholding the anti-discrimination statute should please the more conservative and more liberal Justices.

In conclusion, the Court should compromise and decide this case on the anti-religious ground. A single culinary mistake does not demand shutting down a restaurant. A chef may be fired, but a few anti-religious comments should not undo every anti-discrimination statute since year two.