Colorado Cake Case and First Amendment Implications

Dec 1, 2017

WASHINGTON, D.C. –  On Tuesday, December 5, the U.S. Supreme Court will for the first time hear a case that pits the First Amendment Free Speech Clause against the LGBT “sexual orientation” law. The issue is whether the state can force a Colorado cake artist to use his artistic talents to create a wedding cake celebrating a same-sex ceremony. In other words, can the state force a private citizen to speak an expressive message in support of a same-sex ceremony?

Liberty Counsel filed an amicus brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case that could have a wide impact regarding the clash between free speech and the LGBT agenda, including laws that add “sexual orientation” and “gender identity.”

Jack Phillips, the owner of Masterpiece Cakeshop, represented by Alliance Defending Freedom, lost at every level after the Colorado Civil Rights Commission ruled he violated the state’s “sexual orientation” law by refusing to create an artistic cake for a same-sex ceremony. However, the same Colorado Civil Rights Commission allowed a homosexual baker to refuse to bake a cake with a Scripture verse. The U.S. Supreme Court agreed to hear the case and focused the question to the Free Speech Clause of the First Amendment. This ruling will have a broader implication than the Free Exercise of Religion Clause because free speech includes both secular and religious expression.

No federal law requires businesses to serve all customers without regard to their sexual orientation or gender identity. However, 21 states have “public accommodations” laws that include one or both phrases. They include California and six other states in the West, Illinois and three other states in the upper Midwest, and 10 states on the East Coast from Maryland to Maine. No state in the South or on the Great Plains has such a law.

“The Supreme Court’s ruling in the Masterpiece Cakeshop case could have a significant impact throughout the country for good and bad regarding the collision between the right to free speech and the LGBT agenda,” said Mat Staver, Founder and Chairman of Liberty Counsel. “This case is about whether the government can force private persons to speak a message against their will. The First Amendment protects the right to speak and the right not to speak. This case is not about providing a neutral service to a patron. It is about forced participation and promotion of a same-sex ceremony when that event, which is infused with a message, collides with a person’s conscious. If the Court rules against Jack Phillips, people who refuse to sanction or promote same-sex ceremonies will be persecuted by the state for their convictions. If the First Amendment means anything, it means the government cannot force a private person to speak a message of its choosing,” said Staver.

Liberty Counsel is an international nonprofit, litigation, education, and policy organization dedicated to advancing religious freedom, the sanctity of life, and the family since 1989, by providing pro bono assistance and representation on these and related topics.