January 5, 2019

SCOTUS Offers Lessons In Advocacy; Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

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Some cases teach us new legal tests to apply to a particular issue. And other cases provide examples of how the law should the applied to a particular set of facts. But there is at least one other category of cases—those that teach lessons in how to be an advocate. This is such a case.

The basic issues in this case are well-known, because the case got a lot of media. It involved a baker in Colorado who objected to making a wedding cake for the marriage of a gay couple. Colorado had an anti-discrimination law, and the Colorado Civil Right Commission found that the baker violated this law. The baker objected, arguing that the law impinged on both his rights to free speech and the free exercise of his religion.

The Court noted that it was difficult to reconcile a state’s interest in protecting a class of citizens from discrimination against the First Amendment’s fundamental freedoms. But rather than wrestling with this difficult question by describing a generally applicable test, the Court merely held that the baker “was entitled to the neutral and respectful consideration of his claims in all the circumstances of the case.” The Court then focused on the minutia of this case, finding that the Civil Right Commission expressed “clear and impermissible hostility toward the sincere religious beliefs that motivated” the baker.

To describe a man’s faith as “one of the most despicable pieces of rhetoric that people can use” is to disparage his religion in at least two distinct ways: by describing it as despicable, and also by characterizing it as merely rhetorical—something insubstantial and even insincere. The commissioner even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. This sentiment is inappropriate for a Commission charged with the solemn responsibility of fair and neutral enforcement of Colorado’s antidiscrimination law—a law that protects discrimination on the basis of religion as well as sexual orientation.

The Court also contrasted the way that the Commission treated the baker with the approval it gave to bakers who had refused to create cakes which contained images that conveyed disapproval of same-sex marriages.

The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism. Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers. But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brownies” to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished.

Ultimately, the Court held that “the record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of Phillips’ religious beliefs,” and it reversed the decision.

The Court’s decision shows the careful planning and advocacy the baker’s lawyers did at the initial stages of the case. Rather than relying on broad, sweeping arguments concerning the constitutionality of applying the anti-discrimination law against the baker, his lawyers gathered the evidence necessary to support a smaller as-applied challenge. This included (1) making sure that the facts regarding what was done to the other bakers was in the record and (2) making sure that the comments of the various commission members were in the appellate record.

We may not know exactly what parts of our cases a court may seize upon to find for us. Therefore, it behooves all of us to think broadly about the ways to win your case, and not to drink the Kool-Aid about a particular argument or theory.


  1. Anti-discrimination laws must be applied in a manner that is neutral and respectful of First Amendment claims.
  2. Good advocacy means careful planning to get winning facts in the record, even if you think that those facts may be unnecessary.