Report|Social Issues   17 Minute Read

Supreme Court Preview: Masterpiece Cakeshop

Published December 1, 2017

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On December 5th, the United States Supreme Court will hear oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission. This preview memo explains what the case is about, what the Court could decide, and what a ruling could mean, not only for people within the LGBT community, but all Americans.

What the Case is About

In 2012, a gay couple, Charlie Craig and David Mullins, were planning their wedding. The couple resided in Colorado, which at the time did not recognize marriage for gay couples. They planned to wed in Massachusetts, where marriage was legal for them, and then return to Colorado to celebrate with friends and family. Per the recommendation of their wedding planner, the couple went to a local Colorado bakery, called Masterpiece Cakeshop. When they informed the bakery’s owner, Jack Phillips, that they sought a cake for their upcoming wedding, they were immediately told that the bakery would not provide custom cakes for same-sex weddings. The couple was informed that they could purchase birthday cakes, cookies, brownies, or other baked items, but Phillips stated, “I just don’t make cakes for same-sex weddings.” Frustrated and humiliated, the couple left without an opportunity to even discuss the kind of cake they wanted or what designs it might have included.1

The following day, Craig’s mother, who had accompanied them to the bakery, called Phillips to ask why her son was denied service. Phillips responded that his religious beliefs did not permit him to make a wedding cake for a gay couple, and further, that he objected to making a cake for an “unlawful” or “illegal” event.2

Craig and Mullins filed a charge of discrimination with the Colorado Civil Rights Division, arguing that they were denied full and equal service at a retail store because of their sexual orientation. The Colorado Civil Rights Division investigated the bakery and discovered that it had previously denied service to other gay couples. Phillips did not dispute these findings. He also did not dispute that his bakery is a public accommodation. Based on this record, the Colorado Civil Rights Division found probable cause that the Colorado Anti-Discrimination Act (CADA) had been violated and referred the matter to the Colorado Civil Rights Commission. The Commission filed a formal complaint before an administrative law judge, who subsequently concluded that Phillips had violated CADA. Upon appeal, the Colorado Court of Appeals affirmed the administrative law judge’s ruling.3 After the Colorado Supreme Court denied a request to hear the case, the United States Supreme Court agreed to hear Phillips' appeal.4

What Each Side is Arguing

Masterpiece Cakeshop

Masterpiece Cakeshop’s appeal relies on two major arguments. Both of these arguments stem from the First Amendment of the United States Constitution. The First Amendment states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…”5

First Amendment: Free Speech Argument

The first argument is that because the cakes are custom, they are Phillips’ artistic expression, and thus, his speech. Under the Supreme Court’s previous rulings about “compelled speech,” the government is forbidden from forcing citizens to express messages that they personally deem objectionable or from punishing them for declining to convey such messages.6 For example, in West Virginia State Board of Education v. Barnette (1943), the Supreme Court held that students could not be compelled by the government to salute the flag or stand for the Pledge of Allegiance.7 Phillips argues that this same principle should apply to him; a cake artist should not be forced by the government to create wedding cakes that celebrate marriages he finds offensive.8 According to Masterpiece Cakeshop, because the customized cakes are Phillips’ speech, the Commission violated the protections against compelled-speech when they told him he was required to make cakes for gay couples. In Masterpiece Cakeshop’s view, this is akin to requiring him to speak in favor of gay couples getting married. They claim that if the Court sides with the couple, all artists, including fine-art painters, could be forced to create artwork celebrating ideas that the artist deems objectionable.9 Masterpiece Cakeshop also argues that the Commission further violated the compelled-speech doctrine by telling Phillips he had to report every order the shop declines for the next two years and re-train his staff on compliance with Colorado anti-discrimination law.10

In order for this argument to be successful, the Court must first determine whether custom wedding cakes are considered “artistic expression” under the law. Masterpiece Cakeshop argues that this term should be defined broadly, and that in order to qualify for First Amendment protection, artistic expression does not need a “succinctly articulable” or “particularized message”.11 The shop says Phillips’ custom wedding cakes are “artistic expression” because he intends to, and in fact does, communicate through them.12

Masterpiece cites two prior Supreme Court cases to bolster its position. In the first, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,13 the Court held that a parade organizer was not required to include an LGBT group in its private parade. In the second, Boy Scouts of America v. Dale,14 the Court held that the Boy Scouts of America could reject a gay man who wanted to join the high ranks of the organization. In both cases, the parties who opposed LGBT inclusion felt that including gay individuals would be tantamount to an acceptance and/or promotion of homosexuality. Unlike those previous cases, though, the present case involves a commercial enterprise that is open to the public, not a private parade or associational organization.15

First Amendment: Free Exercise Argument

Masterpiece Cakeshop’s second major argument is that compelling Phillips to design custom wedding cakes for same-sex marriages violates his religious freedom under the Free Exercise clause of the First Amendment.16 The Free Exercise clause not only allows Americans the right to accept and practice any religious belief they desire, it also protects actions made in relation to those religious beliefs.17

Phillips views weddings as an inherently religious event. As a cake artist for such events, he believes he is an “active participant” in the wedding. Thus, he argues, requiring him to bake a cake and thus participate in a marriage between a gay couple (a ceremony he believes violates God’s will) is a violation of his rights under the Free Exercise Clause.18 Masterpiece cites the recent Hobby Lobby decision, where the Court ruled that closely held, for-profit corporations were exempt from regulations its owners objected to on religious grounds. In Hobby Lobby, it was a mandate requiring employers to provide contraceptive coverage for their employees.19 Masterpiece Cakeshop argues that Hobby Lobby should be expanded to the present case and provide protections for Phillips and his wife, as owners of a family-owned company, to determine for themselves who they serve and for what purpose, thereby allowing them the opportunity to deny services based on religious grounds.20

Further, the shop argues that Phillips’ religious beliefs were singled out by the government. The Free Exercise Clause requires that laws that impact an individual’s religious beliefs must be “neutral and generally applicable,” meaning the government must treat everyone equally when enforcing the law, not favoring some views over others. When a law is not neutrally or generally applied, the Court gives less deference to the government’s position and reviews it with a much more critical eye. Because other bakeries in Colorado refused to put anti-same-sex marriage messages on their cakes, Masterpiece argues that supporters of same-sex marriage get a pass, while opponents get punished.21

Colorado Civil Rights Commission + Craig and Mullins

The Colorado Civil Rights Commission and Craig and Mullins rely on two big arguments in their case. First, they argue that the Free Speech Clause of the First Amendment does not prohibit states from banning discriminatory practices of commercial entities who operate in the marketplace.22 After all, they say, a business making a decision about whom to serve is not speech. They also say that commercial entities like Masterpiece Cakeshop are not entitled to special exemptions from anti-discrimination laws simply because the product they sell could possibly be characterized as “expressive”. In fact, nearly anything can be deemed “expressive” under that broad definition.23 Second, they argue that the Free Exercise Clause does not protect a commercial entity who discriminates against a group of people, even if that discrimination is rooted in deeply held religious beliefs.

First Amendment: Response to the Free Speech Argument

Often, a regulation on a business or commercial practice may limit what might be thought of as pure “freedom of speech” and still be acceptable under the First Amendment. The question is whether that law or requirement targets expression or is instead a generally applicable regulation of commercial conduct. For example, a law prohibiting people from passing out anti-war leaflets would be a law targeting expression. On the other hand, a law prohibiting commercial businesses from refusing to serve people because of their race is a generally applicable regulation of commercial conduct. According to the Supreme Court in a case called Roberts v. United States Jaycees (1984), the government can enforce anti-discrimination laws even if someone may feel those laws infringe on their rights, because discrimination by a commercial entity is entitled to “no constitutional protection.”24 Roberts involved an organization called the United States Junior Chamber, or “U.S. Jaycees.” This organization’s bylaws provided that only males were welcome to join. Two local chapters of the national organization admitted women into the organization, violating the bylaws. Because the chapters welcomed women, the national organization withdrew the chapters’ licenses and the chapters subsequently filed discrimination claims under state anti-discrimination laws. The Supreme Court held that the U.S. Jaycees lacked “the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women.”25 While this did not close the door to the possibility of constitutionally-protected discrimination by certain kinds of associational organizations (later dealt with in Boy Scouts v. Dale), the First Amendment right to association did not provide protections for U.S. Jaycees to discriminate. Based on this precedent, Colorado and Craig and Mullins argue here that the First Amendment right to free speech is not a license to discriminate.26 They say that the underlying principle of the Roberts case—that discrimination is entitled no constitutional protection—is applicable in this situation. They argue that the First Amendment right to free speech, like its right to free association, is also not a defense to discrimination.27

In order to convince the Court of this argument, Colorado and the couple have to show why this case is different than the two main cases that Masterpiece Cakeshop relies upon: Hurley and Dale.  They point out that in the case where the Court held that a parade organizer did not have to include a gay rights group in a private parade (Hurley), the Court referred to the conduct as private several times, and it confirmed in a later case that Hurley did not involve a “public accommodation.” In fact, in Hurley, the Court said that in the commercial sphere, state law may ensure that customers “will not be turned away merely on the proprietor’s exercise of personal preference.” The second case also involved a private, non-commercial, setting. In Dale, the Boy Scouts of America refused to allow a gay man to join the high ranks of the organization. The Court held that because the Boy Scouts were an “expressive association,” it was entitled to First Amendment protection to exclude a gay man from its organization. Masterpiece Cakeshop is neither private nor an expressive association, but rather a commercial entity open to the public.28 In those circumstances, Colorado and the couple argue, the state anti-discrimination law can require businesses to serve customers on equal terms.29

First Amendment: Response to the Free Exercise Argument

The second argument Colorado and Craig and Mullins make is that a business owner’s religious beliefs do not entitle him to discriminate in choosing which customers to serve.30 The Supreme Court has ruled that the Free Exercise Clause does not inhibit a state from enforcing “regulations of general application that incidentally burden religious conduct.”31 Respondents argue that Masterpiece Cakeshop must show that Phillips’ religious conduct has been singled out or that CADA selectively burdens only conduct motivated by religious belief. And, they argue, Phillips is unable to show either.32

In fact, they say that what Phillips is seeking is actually preferential treatment.33 Masterpiece Cakeshop is asking for an exception to an anti-discrimination law. Colorado cannot grant Phillips this preferential treatment without granting similar treatment to others. Under the Free Exercise Clause, there is no way to distinguish one person’s religious objections from the religious objections of another.34 Basically, where do we draw the line? Sexual orientation? Gender? Race? Anyone who said they had a religious belief that conflicted with any non-discrimination law (or perhaps any law governing businesses in the marketplace) could simply opt out.

The Colorado Civil Rights Commission and the couple argue that discrimination by a commercial entity violates CADA regardless of whether it’s based on religious or secular hostility.35 While Phillips claims that the Commission has singled him out for his religious beliefs, they counter that Colorado is simply enforcing the state’s anti-discrimination law in the manner in which it was designed; to protect historically-marginalized classes of people, including gay and lesbian Americans.

What the Court Could Decide

While it’s difficult to determine how the Court is going to rule on any particular case, it’s worth exploring the different ways the Court could possibly come down on the questions presented here. First, the Court could uphold the lower courts’ ruling, finding in favor of the couple and the state of Colorado. Second, the Court could overturn the lower court decision, ruling that Phillips’ constitutional rights have been violated. Lastly, as legal scholar Wendy Kaminer argues, the Court could “split the baby,” exempting small, owner-operated businesses that provide nonessential goods and services from some or all non-discrimination laws.36

Reversing the Lower Court

There are two ways that the Supreme Court could rule in favor of Masterpiece Cakeshop. First, the Court would have to determine that the cakes made by Phillips are in fact his artistic expression, and therefore, his speech. If the Court determines that the cakes are speech, they could then find that by requiring him to make cakes to be served at weddings for gay couples, the state is forcing him to speak against his wishes and thus violating the prohibition on compelled-speech. The second way the Court could find for Masterpiece Cakeshop is by determining that the Commission singled out Phillips when it enforced CADA. That could mean that CADA was not neutrally and generally applied, and therefore the state’s actions violated Phillips’ right to freely exercise his religion. This second approach would be a narrower ruling that may be applicable only to Colorado’s anti-discrimination statute and/or Colorado’s application of it in this instance.

If the Court rules in favor of Masterpiece Cakeshop and finds that Phillips’ speech is being compelled, Colorado (and the 21 other states—plus D.C.—with similar statutes protecting gay and lesbian people from discrimination) will likely be forced to rework their respective anti-discrimination laws, or at least the way those laws are enforced. Colorado likely would be forced to take religious objections into consideration when determining whether a business is violating CADA. It’s unclear exactly how far this may extend, but depending on the Court’s language, it could potentially open the door to religious objections of any kind being granted more weight than anti-discrimination laws, not just around sexual orientation, but when it comes to race and gender as well.

Justice Anthony Kennedy will likely again cast the deciding vote in this case. He wrote the opinion in Obergefell, which legalized marriage for gay couples nationwide in 2015. But in that opinion, he also noted that “opposition to same-sex marriage, ‘long has been held—and continues to be held—in good faith by reasonable and sincere people.’”37 Some have highlighted this language to indicate Kennedy may side with Masterpiece Cakeshop in this case.

Upholding the Lower Court

As noted above, this case will most likely be a 5-4 decision, with Justice Kennedy breaking the tie. He has written many opinions protecting members of the LGBT community over his lengthy career on the bench, and given his age, this very well may be his last opportunity to rule on a high-profile LGBT-related case. Many have opined that his legacy is at stake.

If the Supreme Court upholds the lower court decision, it will have determined that the First Amendment does not grant businesses the right to choose which customers to serve based on their religious beliefs. The Court will also have found that, while Phillips’ cakes are aesthetically pleasing, they are not expressive and thus selling them for use at any and all weddings is not speaking in support of marriage for gay couples.

Upholding Colorado’s anti-discrimination law will simply mean that the state will continue to enforce the law. For over 100 years, Colorado has had anti-discrimination laws on the books, and its businesses could not discriminate against customers based on any protected class. Over the years, those protections have been expanded, including to protect against discrimination on the basis of sexual orientation. A Supreme Court ruling in favor of the couple and Colorado would mean that Colorado and other states could continue to enforce these laws against businesses who refuse service to or otherwise discriminate against would-be customers.

Balancing Act

Another route the Court could potentially take is somewhere in the middle. An article in the Boston Globe by Wendy Kaminer suggested that the Court could create a sort of “conscience clause”.38 As she describes it, this would create an exemption for small, owner-operated, “mom-and-pop” businesses that provide nonessential goods and services. An entity that is entirely owned and operated as a small family business rather than a large company or multinational corporation could possibly be seen as more inherently personal to the owner and family. If the Court chooses this route, several problems would result. The government would be granting certain businesses the power to discriminate.

As Kaminer mentions, this wouldn’t be the first time. In 1964, the Civil Rights Act included public accommodation exemptions for business with 15 or fewer employees and for owner-occupied lodgings with five or fewer rooms to rent. By constraining the ability to discriminate to only small, family-owned businesses, Kaminer argues, the discriminatory practices would be on such a small scale that their effect would be minimal.39 However, discrimination is discrimination, regardless of its scale. And as we saw from the recent Hobby Lobby decision, these terms aren’t always easy to define and aren’t always applied as narrowly as you might think. Despite having nearly 30,000 employees across the nation and making over four billion dollars in sales in 2016, Hobby Lobby was considered a closely held, family-owned corporation by the Supreme Court.40 Thus, a decision regarding “owner-operated” businesses with religious objections to same-sex marriages could potentially result in companies the size of Hobby Lobby refusing to serve gay couples who are planning their wedding, or potentially anyone else it desires.

A decision in this fashion could open the floodgates. Because a court decision is only dealing with the case in front of it, not legislating generally applicable rules, lower courts will be dealing with copious amounts of litigation in the future to determine who is exempt and who isn’t—and those future decisions could significantly expand the scope of the original one. Additionally, state legislatures could attempt to define it for themselves, meaning that a company could be free to deny services to a gay couple in one state but not in another. Businesses of all sizes, including perhaps those as big as Hobby Lobby, who seek to discriminate against LGBT individuals and other protected classes could argue the exemption applies to their business. It may seem like a compromise, but it could quickly become a broad license to discriminate.

What a Ruling Could Mean

The heart of this case is a perceived conflict between the rights of a couple and a business owner’s religious liberty. The two do not need to be mutually exclusive, however. If the Supreme Court sides with the state of Colorado and Craig and Mullins, broad religious liberty protections remain. If the Court sides with Masterpiece Cakeshop, depending on the scope of the decision, discrimination against any group could become legal, allowing business owners to reject service on the basis of race, gender, religion, or any other class and subsequently defend it on the grounds of religious liberty.

For Masterpiece Cakeshop

If the Court rules in favor of Masterpiece Cakeshop, non-discrimination laws across the country could be at serious risk, well beyond the scope of LGBT rights. If a bakery can refuse to provide cakes for the marriage of a gay couple, it could also potentially refuse them to interfaith or interracial couples, a Jewish boy’s bar mitzvah, or a woman’s business school graduation party.41

As the Court has previously noted, anything can be defined as “expressive.”42 An artistic chef who makes beautiful plates of food might be able to refuse service to anyone if he said that his religious beliefs would be violated by serving them in his restaurant.43 Hairstyles are also expressive, and often indicate a cultural or personal identity to others. If the Court rules in favor of Masterpiece Cakeshop, a barber or salon could potentially refuse to do someone’s hair for a discriminatory reason and possibly be protected by the Constitution. Everything from tailors and bridal shops to coffee shops and jewelers could potentially claim a religious exemption to discriminate against any protected group of people.

For Colorado Civil Rights Commission + Craig & Mullins

If the Court rules in favor of the couple, Colorado and 21 other states, as well as D.C., with anti-discrimination laws which include sexual orientation will be able to go on enforcing them. Commercial enterprises would not be able to turn someone away based on who they are simply because they invoke their religious beliefs. As the Colorado Court of Appeals noted, anti-discrimination laws have been on the books for decades.44

Importantly, religious liberty protections would also remain. A decision upholding anti-discrimination laws would not do away with the protection afforded to free exercise of religion by the First Amendment of the United States Constitution. This case, like many before it, would further solidify that free exercise does not include the right to discriminate against or harm others. Moreover, strong exemptions for religious organizations already exist. CADA permits “churches, synagogues, mosques, and other places that are principally used for religious purposes to refuse same-sex couples seeking a location to marry or host a reception.” While Masterpiece Cakeshop contends that Phillips, as the owner of a “religious business,” should also fall under this exemption, a ruling for Colorado and the couple would recognize the distinction between religious organizations or places of worship and commercial enterprises operating in the marketplace—with the latter holding themselves open to the public in order to make a profit. With a decision in favor of Craig and Mullins, a religious organization would continue to be free to select who could worship, marry, and otherwise participate in its religious activities. But commercial businesses operating as public accommodations would have to follow generally applicable laws.

In the “Middle”

As noted above, the Court could potentially attempt to find a compromise and rule that small, family-owned businesses are exempt from certain aspects of anti-discrimination laws. While this is perhaps a viable alternative in theory, it raises the same practical issues as a ruling entirely in Masterpiece Cakeshop’s favor. Americans should not have to fear shopping at family-owned businesses, but that’s exactly the scenario a closely-held business exemption would create. Further, as we know from Hobby Lobby, a ruling in that vein may not be narrowed to small businesses but could be read to include large chain stores that exist across the country. A gay couple in a small town would potentially be forced to drive for many miles to find a business willing to serve them, only to arrive at a large, but family-owned, store like Hobby Lobby that could also then refuse them service.

Conclusion

In December 2017, the Supreme Court will hear oral arguments from both Masterpiece Cakeshop and the Colorado Civil Rights Commission. There will be a lot of talk about cake. Yet both sides, and the Justices, know that a lot more than cake is at stake. The equal treatment of all historically marginalized groups could be in jeopardy. No one knows how the Court will rule, but we do know that Justice Kennedy will likely be the deciding vote in either direction.

  1. Brief for Respondents, Colorado Civil Rights Commission (Pp. 10-11), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed October 23, 2017.

  2. Brief for Respondents, Colorado Civil Rights Commission (Pg. 11), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed October 23, 2017.

  3. Brief for Respondents, Colorado Civil Rights Commission (Pp. 12-14), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed October 23, 2017.

  4. Adam Liptak, “Justices To Hear Case on Religious Objection to Same-Sex Marriage,” New York Times, June 26, 2017. Accessed October 30, 2017. Available at: https://www.nytimes.com/2017/06/26/us/politics/supreme-court-wedding-cake-gay-couple-masterpiece-cakeshop.html.

  5. United States, Constitution, First Amendment, 1789.

  6. Riley v National Federation of the Blind of NC, Inc., 87-328, United States Supreme Court, June 29, 1988.

  7. West Virginia State Board of Education v Barnette, , 591, United States Supreme Court, June 14, 1943.

  8. Brief for Petitioners, Masterpiece Cakeshop (Pg. 16-18), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed August 31, 2017.

  9. Brief for Petitioners, Masterpiece Cakeshop (Pg. 3), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed August 31, 2017.

  10. Brief for Petitioners, Masterpiece Cakeshop (Pg. 28), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed August 31, 2017.

  11. Brief for Petitioners, Masterpiece Cakeshop (Pg. 18), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed August 31, 2017.

  12. Brief for Petitioners, Masterpiece Cakeshop (Pg. 19), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed August 31, 2017.

  13. Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 94-749, United States Supreme Court, June 19, 1995.

  14. Boy Scouts of America v. Dale, 99-699, United States Supreme Court, June 28, 2000.

  15. Brief for Respondents, Charlie Craig and David Mullins (Pg. 28), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins, 16-111, American Bar Association. Filed October 23, 2017.

  16. Brief for Petitioners, Masterpiece Cakeshop (Pg. 38), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed August 31, 2017.

  17. Michael McConnell, Religion and the Constitution, pg. 105 (2002).

  18. Brief for Petitioners, Masterpiece Cakeshop (Pg. 38), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed August 31, 2017.

  19. Burwell v Hobby Lobby, 13-354, United States Supreme Court, June 30, 2014.

  20. Brief for Petitioners, Masterpiece Cakeshop (Pg. 38), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed August 31, 2017.

  21. Brief for Petitioners, Masterpiece Cakeshop (Pg. 38-46), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed August 31, 2017.

  22. Brief for Respondents, Colorado Civil Rights Commission (Pp. 19-20), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed October 23, 2017; See also Brief for Respondents, Charlie Craig and David Mullins (Pg. 28), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins, 16-111, American Bar Association. Filed October 23, 2017.

  23. Brief for Respondents, Colorado Civil Rights Commission (Pg. 20), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed October 23, 2017.

  24. Roberts v United States Jaycees, 83-724, United States Supreme Court, April 18, 1984.

  25. Roberts v United States Jaycees, 83-724, United States Supreme Court, April 18, 1984.

  26. Brief for Respondents, Colorado Civil Rights Commission (Pg. 23-24), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed October 23, 2017.

  27. Brief for Respondents, Colorado Civil Rights Commission (Pg. 23-24), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed October 23, 2017.

  28. Brief for Respondents, Colorado Civil Rights Commission (Pg. 27; 29; 31; 39), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed October 23, 2017.

  29. Brief for Respondents, Colorado Civil Rights Commission (Pg. 32), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed October 23, 2017.

  30. Brief for Respondents, Colorado Civil Rights Commission (Pg. 50), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed October 23, 2017.

  31. Christian Legal Society Chapter v Martinez, 08-1371, United States Supreme Court, June 28, 2010.

  32. Brief for Respondents, Colorado Civil Rights Commission (Pg. 51), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed October 23, 2017.

  33. Brief for Respondents, Colorado Civil Rights Commission (Pg. 52), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed October 23, 2017.

  34. Brief for Respondents, Colorado Civil Rights Commission (Pg. 52), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed October 23, 2017.

  35. Brief for Respondents, Colorado Civil Rights Commission (Pg. 18), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed October 23, 2017.

  36. Wendy Kaminer, “How the Supreme Court could have its cake and eat it too,” The Boston Globe, July 1, 2017, accessed on: October 25, 2017. Available at: https://www.bostonglobe.com/opinion/2017/07/01/how-court-could-have-its-cake-and-eat-too/kyb75CJWDr3g69NJjaFXjN/story.html.

  37. Amy Howe, “Wedding cakes v. religious beliefs?: In Plain English” scotusblog, September 11, 2017, accessed on October 23, 2017. Available at: http://www.scotusblog.com/2017/09/wedding-cakes-v-religious-beliefs-plain-english/.

  38. Wendy Kaminer, “How the Supreme Court could have its cake and eat it too,” The Boston Globe, July 1, 2017, accessed on: October 25, 2017. Available at: https://www.bostonglobe.com/opinion/2017/07/01/how-court-could-have-its-cake-and-eat-too/kyb75CJWDr3g69NJjaFXjN/story.html.

  39. Wendy Kaminer, “How the Supreme Court could have its cake and eat it too,” The Boston Globe, July 1, 2017, accessed on: October 25, 2017. Available at: https://www.bostonglobe.com/opinion/2017/07/01/how-court-could-have-its-cake-and-eat-too/kyb75CJWDr3g69NJjaFXjN/story.html.

  40. “America’s Largest Private Companies,” Forbes, 2017 Ranking, #94, Accessed November 28, 2017. Available at: https://www.forbes.com/companies/hobby-lobby-stores/.

  41. Brief for Respondents, Charlie Craig and David Mullins (Pg. 3), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins, 16-111, American Bar Association. Filed October 23, 2017.

  42. Brief for Respondents, Colorado Civil Rights Commission (Pg. 20), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed October 23, 2017.

  43. Brief of American Unity Fund and Profs. Dale Carpenter and Eugene Volokh as Amici Curiae in Support of Respondents (Pg. 5), Masterpiece Cakeshop, LTD., and Jack C. Phillips v. Colorado Civil Rights Commission, Charlie Craig, and David Mullins,16-111, American Bar Association. Filed October 26, 2017.

  44. Charlie Craig and David Mullins v Masterpiece Cakeshop Inc., and any successor entity, and Jack C. Phillips, Respondents-Appellants, and Colorado Civil Rights Commission, Appellee, 14CA1351, Colorado Court of Appeals, August 13, 2015.

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