The Supreme Court has again been asked to resolve a closely watched dispute involving discrimination on the basis of sexual orientation. The court heard oral argument in December in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which, unlike prior challenges in this area, involves the First Amendment. The court must decide whether the First Amendment bars application of Colorado's public accommodations law to compel a person to create expression (here, a wedding cake) that conflicts with that person's sincerely held religious beliefs about same-sex marriage.

This dispute began when a same-sex couple asked a Denver-area bakery to make them a custom wedding cake. The bakery owner, Jack Phillips, refers to himself as a “cake artist” and is a devout Christian. He refused to create a custom cake for the couple, citing his religious beliefs. He claimed that this refusal was in line with his decision not to design and bake any Halloween-themed cakes, cakes including alcohol as an ingredient, cakes celebrating divorce, or any other cakes conflicting with his religious beliefs. He would, however, sell the couple any products in his store, including a generic (not custom) wedding cake. The couple filed a complaint with the Colorado Civil Rights Commission (CCRC).

The CCRC concluded that the baker violated the Colorado Anti-Discrimination Act (CADA). According to the commission, the First Amendment did not permit Phillips to refuse his services to the couple. Furthermore, the CCRC required, among other things, that Phillips provide corrective training to his employees, some of whom were his family members. Essentially, from his perspective, the CCRC ordered him to teach his employees that Colorado's anti-discrimination laws trumped their religious beliefs. Phillips challenged the CCRC's ruling by arguing that applying the state's anti-discrimination law to require him to create a custom cake for a same-sex couple violated his First Amendment rights to free exercise of his religion and free speech.

The couple, Charlie Craig and David Mullins, posit the issue as one involving public accommodations, not free speech. They argue that it is a pillar of American anti-discrimination law that, when a business opens itself to serve the general public, it cannot refuse to serve customers based on who they are. They argue that permitting Phillips to refuse services to them would open the doors to other forms of discrimination that have long been prohibited by courts. They hypothesize that, if his position prevailed, a portrait photographer could refuse to conduct photo shoots with Hispanic families or that a banquet hall could refuse to host events for Jewish families. And, indeed, the entire inquiry that Phillips endorses—a judge deciding whether a religious belief is sincerely held or a sufficiently material command in a particular religion—would result in an uncomfortable entanglement of the courts in matters of religion.

The justices' questioning at oral argument highlighted the difficult balance of interests in this case. All sides were closely scrutinizing the questions asked by Justice Anthony Kennedy, who seems once again to be a critical vote in what could be a split decision. He expressed concerns for the rights of the same-sex couple, but he also noted that the commission had been “neither tolerant nor respectful of Phillips' religious beliefs.” Justice Samuel Alito agreed with that latter point, stating that is was “disturbing” that the commission was apparently engaged in “a practice of discriminatory treatment based on viewpoint.”

Justice Kagan's questioning expressed concerns about the difficulties in drawing lines. If a baker is allowed to refuse to bake a cake, would it not be true that make-up artists, hairstylists, tailors, caterers, florists, chefs, and the like could all refuse to provide services to same-sex couples planning their weddings? The baker's counsel tried to distinguish Mr. Phillips's work as an artist. Justice Elena Kagan pushed back. She asked on which side of the line chefs, florists, hairstylists, tailors and makeup artists would fall. According to Phillips's position, he designs cakes as works of art that convey a message, and is therefore engaged in speech, whereas neither a chef nor a tailor are engaged in the same sort of artistic creation. Justice Stephen Breyer expressed concern that this position would “undermine every civil rights law.”

These questions highlight the toughest question in this case: Where is the line? The Supreme Court will likely try to thread that needle by issuing a narrow decision that does not massively unsettle either First Amendment or anti-discrimination rights. A decision is not expected until summer.

Stephen A. Miller practices in the commercial litigation group at Cozen O'Connor's Philadelphia office. Prior to joining the firm, he clerked for Justice Antonin Scalia on the U.S. Supreme Court and served as a federal prosecutor for nine years in the Southern District of New York and the Eastern District of Pennsylvania.

Leigh Ann Benson also practices in Cozen O'Connor's commercial litigation group. She received her J.D. from Villanova University School of Law and her B.A., magna cum laude, from Virginia Tech.