On December 5, 2017, the U.S. Supreme Court heard oral arguments in a case that pits protections granted to a same-sex couple in a state Civil Rights Act against claims of Free Speech and Freedom of Religion by a Christian baker. The outcome is far from certain, but the effect on state and federal discrimination cases could be far-reaching.

In this post, I will review the oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, in which the U.S. Supreme Court will consider whether a wedding cake vendor had the right to refuse service to a same-sex couple due to his religious objection. I will discuss the history of the LGBT discrimination case and explain the possible outcomes.

Colorado Anti-Discrimination Act Protects Against LGBT Discrimination

There anti-discrimination laws at the federal, state, and even local level. These laws prohibit discrimination at work, in housing, and by businesses open to the public. No matter where you live in the United States, you can file a complaint with the Equal Employment Opportunity Commission (EEOC) for discrimination based on protected characteristics like race, sex, religion, old age, or disability (among others). However, federal law does not explicitly prohibit LGBT discrimination (based on a person’s sexual orientation). Whether that is included in Title VII of the Civil Rights Act is a question currently up for debate at the Court of Appeals level, where two cases recently came to two different results.

Some states, including Colorado, have chosen to provide their residents with additional, more explicit, protections against LGBT discrimination. The Colorado Anti-Discrimination Act (CADA), as amended by the Sexual Orientation Employment Discrimination Act (SOEDA), prohibits discrimination based on a person’s sexual orientation, as well as the categories covered by Title VII. If a business is open to the public or offering public accommodations, it cannot refuse anyone “the full and equal enjoyment of foods and services” based on one of the protected traits.

Same-Sex Couple and Christian Baker Clash Over Wedding Cake

In July 2012, David Mullins and Charlie Craig went to Masterpiece Cakeshop to order a custom wedding cake for their reception. Bakery owner Jack Phillips told them the bakery wouldn’t sell wedding cakes to same-sex couples. Dave and Charlie filed complaints with the Colorado Civil Rights Commission (which enforces the CADA) alleging sexual orientation discrimination. The Commission determined that the bakery had violated state law.

The baker appealed in Federal Court, claiming that he had a Constitutional right to refuse to bake a cake for an LGBT couple in light of his First Amendment rights to Free Speech and Freedom of Religion. On August 13, 2015, the Colorado Court of Appeals affirmed the Commission’s ruling, finding that the CADA did not infringe on the baker’s First Amendment rights. The Colorado Supreme Court declined to hear the case, but the baker kept appealing all the way to the U.S. Supreme Court, which granted certorari on June 26, 2017. Oral arguments in the case occurred on December 5, 2017, and a final opinion is expected before the end of the current term in June 2018.

What Does the Baker’s Religion Have to Do with the Case?

In oral arguments before the U.S. Supreme Court, Jack Phillip’s attorneys argued that the CADA was unenforceable in this case because baking custom wedding cakes was a form of expression. They said that the law prohibiting bakers from refusing service to homosexual couples based on their sexual orientation forced Phillips to make expressions he did not agree with. In particular, it would require him to celebrate same-sex marriages, which he is opposed to on religious grounds.

The attorneys claimed that because the law infringed on his First Amendment rights, the court should apply “strict scrutiny”, the highest test for government actions, and find that the prohibition on discrimination was unconstitutional. According to their argument, preventing discrimination was not enough of a reason to pass the law, since same-sex couples could choose a different baker.

Public Accommodation Laws and Religious Expression

According to the Colorado Civil Rights Commission, the CADA isn’t designed to interfere with religious expression or free speech. The CCRC said the law was an ordinary, neutral, and generally applicable public accommodation law that applies universally to companies that offer public goods and services. The Supreme Court has upheld similar laws that regulate commercial conduct to prevent discrimination against protected classes in the past. The CCRC asked the court to apply similar standards in this case.

What a U.S. Supreme Court Decision Means for Discrimination Law

The decision in Masterpiece Cakeshop, LTD v Colorado Civil Rights Commission, is probably still months away. After oral arguments, Supreme Court justices must discuss cases behind closed doors and draft opinions (often in favor of both sides). Then each justice must determine which arguments he or she will support. Whichever opinion achieves a majority (5 votes), becomes the law of the land.

Those who regularly observe oral arguments and read U.S. Supreme Court decisions know that it is often impossible to guess the outcome of a case before the opinion is released. However, a commentator for the American Civil Liberties Union (which represented the couple), said it appeared at the end of the day as though the decision will depend on the vote of Justice Anthony Kennedy. As has often been true in recent years, his vote will likely tip the scales either for increased discrimination protections or broader religions expression.

Should the U.S. Supreme Court determine that the CADA unconstitutionally interfered with baker’s free expression of his religion (or any of the variations of this argument that were presented), it could allow employers, landlords, and business owners to create a kind of personal religious exemption to state and federal anti-discrimination laws. Whenever a professional’s conduct includes expression, whether in the form of speaking, acting, or artistic creation, that professional may be able to raise religious defenses to anti-discrimination claims under state laws.

If, however, the Justices decide in favor of the CCRC, discrimination attorneys and their clients will be able to rely on the enhanced protections built into many states’ civil rights laws. They will continue to use these laws to ensure gay and lesbian citizens are granted the same protections at work, in finding a house, and as consumers, for years to come.

At Eisenberg & Baum, LLP, we know how important it is for our employment discrimination attorneys to stay up to date with current sexual orientation discrimination case law. We make it a priority to follow changes in the law, and we can help you understand your rights, and what your remedies might be if you have faced discrimination based on who you love. Contact Eisenberg & Baum, LLP, today for a free consultation.