Content Regulation / Censorship, Religious Expression
Otto-Preminger-Institut v. Austria
On Appeal Mixed Outcome
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The Colorado Court of Appeals upheld the decision of the lower courts in finding that the owners of a bakery, by refusing to bake a wedding cake for a same-sex couple, violated Colorado’s Anti-Discrimination Act (CADA). The Court rejected the bakery owner’s argument that this violated his freedom of speech rights.
On June 26, 2017, the Supreme Court granted certiorari.
The Plaintiffs in this case are Charlie Craig and David Mullins, who attempted to buy a wedding cake to celebrate their marriage. The Defendants, Masterpiece Cakeshop and Jack Phillips (the owner of the shop), refused to sell a wedding cake to the Plaintiffs because they did not support same-sex marriage. The Defendants offered to bake anything else for the Plaintiffs, just not a wedding cake. The Plaintiffs then brought the present action, alleging that the Defendants had unlawfully discriminated against them in violation of Colorado state law.
An Administrative Law Judge, on summary judgment, ruled in favor of the Plaintiffs, ordering Masterpiece Cakeshop to cease and desist its refusal to sell wedding cakes to same-sex couples. This was appealed to the Colorado Civil Rights Commission, which affirmed the decision of the Administrative Law Judge. This appeal followed.
This cased was reviewed by the Colorado Court of Appeals, division one. Judge Taubman wrote the opinion of the Court.
To prevail on a claim under the Colorado Anti-Discrimination Act (CADA), the challenging party must prove that, but for the party’s membership in a certain class, they would not have been denied services in a public place. Craig and Mullins argued that, but for their sexual orientation, Masterpiece Cakeshop would not have discriminated against them in refusing to bake a cake for their wedding celebration.
Masterpiece Cakeshop argued that they did not discriminate against the Plaintiffs based on their sexual orientation. Rather, they simply would not provide a wedding cake for the Plaintiffs because of their intended conduct of getting married. They offered to bake any other type of product for the couple. The Court disagreed with Masterpiece Cakeshop’s differentiation between “discrimination based on a person’s status and discrimination based on conduct closely correlated with that status.” [para. 32] The Court found that same-sex marriage was mostly engaged in by gays, lesbians, and bisexuals, therefore making the conduct so closely related to the status as to warrant protection under the act. After determining that Masterpiece Cakeshop violated the CADA, the Court then turned to whether Masterpiece Cakeshop’s freedom of speech or freedom of religion were violated by the application of the CADA.
Master Cakeshop argued that, by requiring them to make wedding cakes for same-sex couples, the government forced Master Cakeshop to adopt a message supporting same-sex marriage because wedding cakes are inherently an expression in support of marriage. Thus, providing one to a same-sex couple would thereby be an inherent expression in support of same-sex marriage. The Court did not find this argument persuasive, finding that the act of baking a cake does not constitute “expressive conduct” entitling Masterpiece Cakeshop to the protection of the First Amendment. The Court did not determine that this precluded all cakes from being deemed as expressive conduct, but this blanket denial to make a cake for a same-sex couple was not protected conduct under the First Amendment. The Court noted that CADA does not prevent the Cakeshop from adding some type of disclaimer stating that it does not endorse same-sex marriage through its baking of wedding cakes, it just cannot refuse service based on sexual orientation.
The second argument raised by Masterpiece Cakeshop was that requiring them to serve cakes to same-sex couple violates their right to their free exercise of religion. The Court found that, because CADA is “a neutral law of general applicability,” there was no violation of the Free Exercise Clause. [para. 74] The Court found that the law applies equally to all establishments in Colorado, with permitted exemptions for some religious facilities. This law is not aimed at targeting a specific religion or population, but rather requires businesses that wish to operate in Colorado not to refuse service to someone based on their sexual orientation.
Masterpiece Cakeshop also argued that strict scrutiny review was proper in this case because it implicates a combination of freedom of religion and freedom of expression (a so-called hybrid issue). Again, the Court was not persuaded and rejected this argument since it found that Masterpiece Cakeshop’s freedom of expression rights were not violated.
Finally, Masterpiece Cakeshop argued that, nonetheless, the Court should employ the strict scrutiny standard because the Colorado Constitution affords citizens greater rights than the federal Constitution, and Colorado courts have routinely followed this standard with respect to fundamental rights. The Court found that, while some fundamental rights are afforded this higher standard, the free exercise of religion is not one of them.
Therefore, the Court continued its analysis using rational basis review because the CADA is a neutral law of general applicability. The Court found that the CADA was “rationally related to Colorado’s interest in eliminating discrimination in places of public accommodation.” [para. 101] The decision of the Commission was therefore affirmed. Justice Loeb and Berger concurred.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
This case presents a mixed outcome in the arena of freedom of speech and expression. Although it seemingly stifles the speech of Masterpiece Cakeshop, by establishing that the act of baking a cake does not symbolize support of gay marriage through expressive conduct, the Court neither contracts nor expands expression in this case.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
As a decision of the Colorado Court of Appeals, this decision binds all Colorado state trial courts. The decision is currently on appeal to the Supreme Court of Colorado.
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