Masterpiece Cakeshop v. Colorado Civil Rights Commission

1. Make sure you are clear on Mr. Phillips "rules." This is what I understand. He does not discriminate with respect to purchasers on the basis of sexual orientation. He will sell pre-made baked goods to LGBTQ people. And he will sell (I believe) custom items to LGBTQ people so long as they celebrate things that he does not believe are religious, such as a birthday or a graduation. He will not, however, use his creative skills to create baked goods that celebrate activities he believes are contrary to his religion such as a same-sex wedding or a cake that celebrates a trans-gender transition.

2. As we have (or will) study elsewhere in the course, there is a move afoot to overrule Employment Division v. Smith and return to something close to the rule of Sherbert v. Verner under which laws that did not contain exemptions for sincere religious beliefs were subject to strict scrutiny. How does this case come out under those circumstances?

3. What if Mr. Phillips rules were based on politics rather than religion. He would sell cakes to Democrats but he would not create (and sell) a custom cake that celebrated political victories he did not care for, a "Build Back Better" cake for example. Suppose Colorado passed a law forbidding such discrimination. Would that be constitutional?

4.Justice Kennedy's opinion makes reference to a 1968 opinion, Newman v. Piggie Park Enterprises. That case involved a civil action against a chain of drive-in restaurants and sandwich shops that persisted in refusing to serve “Negroes” after the Civil Rights Act of 1964 was enacted and held constitutional. The issue as the case went to the Supreme Court was whether the plaintiffs were entitled to attorneys fees after winning their case. In a per curium opinion, the court unanimously held that the plaintiffs were so entitled in part because the defendant’s arguments were “patently frivolous.” What were those patently frivolous arguments? Here is one the court listed: “the Act was invalid because it 'contravenes the will of God' and constitutes an interference with the 'free exercise of the Defendant's religion.” What differentiates the Piggie Park defendants from Mr. Phillips bakery? 

5. Justice Kennedy's says the following behavior compromised the neutrality of the Colorado tribunal: "One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the state.” Isn't the commissioner just restating exactly what the Colorado anti-discrimination law says? Why is that a bad thing?

6. Apparently the really problematic utterance for Justice Kennedy was the following: "Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” When the Supreme Court found the religious arguments of Piggie Park defendants "patently frivolous," were they saying something similar?   According to the Encyclopedia of Wars, out of all 1,763 known/recorded historical conflicts, 123, or 6.98%, had religion as their primary cause.  (Wikipedia entry on Religioous War). Assume that number is correct (or at least as correct as possible given the complexities of causation and historical research). How does that affect your assessment of the criticized commissioner's comments?

7. Note: this case report, like others in Constitutional Law, contains words which many people find highly offensive, particularly in certain contests. Please recognize that I am quoting a justice's quoting another justice's quoting of a (highly offensive) use of those words.

8. If anyone wants to see examples of Masterpiece Cakeshops cakes (complete with the biblical-themed mug in which he stores his tools), see https://www.youtube.com/watch?v=3wzxIPRUEOw