Charlie Craig and David Mullins entered Masterpiece Cakeshop, Ltd., a retail business in Lakewood, Colorado, that sells wedding cakes and other baked goods to the general public, seeking to buy a wedding cake.  Before they could even discuss what their cake would look like, however, the owner of the business told them that he would not sell them one because he does not create wedding cakes for same-sex couples.  Mullins and Craig filed a complaint with the Colorado Civil Rights Division (CCRD) claiming that the shop’s owner had violated Colorado’s Antidiscrimination Act, which makes it unlawful for a person to refuse service to an individual based on his or her sexual orientation.  The CCRD held that Masterpiece violated the antidiscrimination law, and the Colorado Civil Rights Commission upheld that decision.  Masterpiece appealed to the Colorado Court of Appeals, claiming that the antidiscrimination law violated its First Amendment rights to free speech and free exercise of religion.  The Colorado Court of Appeals upheld the CCRD decision, and after the Colorado Supreme Court declined to hear the case, Masterpiece petitioned the U.S. Supreme Court for review.  The Supreme Court agreed to hear the case.

CAC filed a friend-of-the-court brief on behalf of First Amendment scholars in support of Craig and Mullins.  In our brief, we argued that the First Amendment does not give—and has never been understood to give—commercial businesses the right to violate generally applicable public accommodations laws that prohibit discrimination.  First, we explained that under long-standing Supreme Court case law, the First Amendment does not prohibit states from regulating a business’s conduct in a content-neutral manner, even though such regulation may have an incidental effect on speech.  That is because a business is not exempt from generally applicable, content-neutral laws merely because it seeks to express a message by violating them.  For that reason, Masterpiece Cakeshop does not have a First Amendment right to violate Colorado’s Antidiscrimination Act and engage in the conduct of discrimination, no matter what views it seeks to express by doing so.  Second, we argued that Masterpiece Cakeshop’s theory that the First Amendment protects its discriminatory conduct has no limiting principle.  If accepted, its theory would wreak havoc on nondiscrimination protections applicable to places of public accommodation nationwide, and give all manner of wedding vendors and other commercial businesses significant room to discriminate, not just on the basis of sexual orientation but also on the basis of such other factors as race, creed, sex, religion, and marital status.

In a narrow ruling, the Court held, 7-2, that the Colorado Civil Rights Commission had violated the baker’s First Amendment rights under the Free Exercise clause because the Commission did not “give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided.” But in his opinion for the Court, Justice Kennedy rejected a sweeping understanding of the First Amendment that would create a license to discriminate.  As Justice Kennedy explained, going forward, the “general rule” remains that “religious and philosophical objections . . . do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”