Three years ago, in Burwell v. Hobby Lobby Stores, 573 U.S. 22 (2014), the U.S. Supreme Court held that the Religious Freedom Restoration Act (RFRA) can be applied to closely held corporations whose owners have sincerely held religious beliefs. RFRA prohibits the government from substantially burdening a person's exercise of religion unless the government demonstrates that the application of that burden to that person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. RFRA covers “any exercise of religion, whether or not compelled by, or central to a system of religious beliefs.” 42 U.S.C. §2000cc-5(7)(A). See Pinzler, “Hobby Lobby and Piercing the Corporate Veil,” N.Y.L.J. Sept. 4, 2014.)

Case Background

The Supreme Court has granted certiorari in Masterpiece Cakeshop and Jack Phillips v. Colorado Civil Rights Commission and Craig and Mullins. The question presented is whether applying Colorado's public accommodations law to compel a “cake artist” (a baker) to prepare a cake in honor of a customer's gay wedding celebration violates his “sincerely held religious beliefs” about gay marriage and thus violates the Free Speech or Free Exercise clause of the First Amendment.

David Mullins and Charlie Craig visited Masterpiece Cakeshop in July 2012, to order a cake for their upcoming wedding reception. Mullins and Craig planned to marry in Massachusetts and then celebrate with family and friends back home in Colorado. Masterpiece owner Jack Phillips informed them that because of his religious beliefs the store's policy was to deny service to customers who wished to order baked goods to celebrate a same-sex couple's wedding.

Long-standing Colorado state law prohibits public accommodations, including businesses such as Masterpiece Cakeshop, from refusing service based on factors such as race, sex, marital status or sexual orientation. Mullins and Craig filed complaints with the Colorado Civil Rights Division (CCRD) contending that Masterpiece had violated this law. The CCRD ruled that Phillips illegally discriminated against Mullins and Craig. In December 2013, an administrative law judge issued a decision confirming that finding. The baker appealed the ALJ's ruling to the Colorado Civil Rights Commission. The Commission's order affirmed previous determinations that Masterpiece's refusal to sell Mullins and Craig a wedding cake constituted discrimination on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act, brushing aside the baker's purported distinction between gay marriage, to which he was opposed, and homosexuality, to which he was not opposed.