In a clash over a civil rights law that prevents discrimination in public accommodations and freedom of speech and religion as protected by the First Amendment, the U.S. Supreme Court is scheduled later this year to hear oral arguments in what will likely be a landmark decision on an issue that has been lurking in the court system for several years.

The case is Masterpiece Cake Shop v. Colorado Human Rights Commission.

At issue is a Colorado law that prevents businesses from discriminating against customers on the basis of, among other things, sexual orientation.

This law prevents restaurants, hotels, department stores, and any other business that is open to the public, from refusing service to gay customers, just as it similarly prevents discrimination by businesses against customers based on race, color, religion, national origin, ancestry, sex, disability or age.

These laws that prevent discrimination in public accommodations go back to the civil rights era, when minority ethnic, racial, and religious groups were denied service at restaurants, were barred from golf courses, were banned from playing major league baseball, and were excluded from public universities.

Similarly, women were excluded from business organizations open to public membership, make that male public membership; and minorities were excluded from housing in certain areas.

Since those days, laws have been passed on the state and federal level that prohibit this kind of discrimination, including discrimination based on sexual orientation.

Enter Jack Phillips, a Colorado cake artist who refused to prepare a custom cake at two customers’ request for a gay marriage ceremony.

Phillips claims that to do so would violate his religious beliefs, and that his First Amendment rights to freedom of religion and speech override the anti-discrimination law.

According to the opinion of the Colorado Court of Appeals, which did not buy Phillips’ First Amendment argument, Phillips, a Christian, “believes that decorating cakes is a form of art, that he can honor God through his artistic talents, and that he would displease God by creating cakes for same-sex marriages.”

Phillips contended in the Colorado Court that he did not discriminate against the customers because they were gay, and made clear that he would prepare any other type of bakery product for them, just not a wedding cake. He argued, however, that to require him to prepare a wedding cake unconstitutionally requires him to convey a celebratory message about gay marriage, which the First Amendment protects him from having to convey.

The Colorado Court rejected that argument, saying he “does not convey a message supporting same-sex marriages merely by abiding by the law and serving its customers equally.” It also determined that to do so in this case did not violate his religious freedom.

In rejecting Phillips’ claims, the Colorado Court declared that the state’s anti-discrimination law in question “prevents the economic and social balkanization prevalent when businesses decide to serve only their own ‘kind,’ and ensures that the goods and services provided by public accommodations are available to all of the state's citizens.”

A number of courts around the nation have been dealing with the applicability of the First Amendment to public accommodation laws, with, perhaps understandably, inconsistent results.

Later this year, arguments will be presented to the Supreme Court, which will then decide this important issue.


-- Ken Garten is a Blue Springs attorney. Email him at