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After Marriage Equality


By: Joshua Preston, Volume 102 Staff Member

Obergefell v. Hodges (2015) was a watershed moment in extending the full benefits of society to members of the LGBT community.[1] Though the freedom to marry was won, Obergefell failed to address the broader issue of whether nondiscrimination protections extended to people based on their sexual orientation and/or gender identity. Despite the 1964 Civil Rights Act creating protections for certain categories, Congress and the Court left this question largely to the states.[2] The constitutionality of these state nondiscrimination laws will be the focus of the United States Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission.[3]

Masterpiece Cakeshop involves the case of two men who, in July 2012, sought to order a cake for their upcoming wedding reception.[4] The business owner denied the couple service because he generally refused to support, in any capacity, same-sex marriage.[5] This refusal violated the Colorado Anti-Discrimination Act (CADA), which prohibits public accommodations discrimination based on sexual orientation.[6] When the two men filed a complaint with the Colorado Civil Rights Division, the Division ordered Masterpiece to alter its policies to ensure compliance with CADA.[7] Upon appeal, the Colorado Court of Appeals affirmed the Division’s ruling.[8] After the Colorado Supreme Court denied review, on June 26, 2017, the U.S. Supreme Court granted certiorari and scheduled oral arguments for December 5, 2017.[9] More than 40 amicus briefs were filed with the court, including from the American Bar Association (for the couple) and the Department of Justice (for the business owner).[10]

The potential impact of this case for LGBT rights cannot be overstated. Masterpiece’s challenge to Colorado’s LGBT nondiscrimination law will either extend these rights nationwide or scale them back, declaring a constitutional right to discriminate based on sexual orientation and/or gender identity. This Post outlines the legal questions involved and notes that as observers comb through oral arguments, all eyes will be on Chief Justice John Roberts and Justice Anthony Kennedy. As an issue framed between free speech and nondiscrimination, this case picks at the tensions in their respective jurisprudence. Although this Post takes a cautiously optimistic stance that the Court will side with the respondents, it closes with a few thoughts of what remedies may be available to LGBT rights advocates if the Court finds in favor of Masterpiece.


For the last 45 years, protecting the rights of the LGBT community has been a battle fought on both the state and local level.[11] Although several cities passed ordinances prohibiting discrimination based on sexual orientation, Wisconsin, in 1982, became the first state to pass a statewide gay and lesbian nondiscrimination law.[12] Although a handful of other states followed suit, it was not until 1993 when the first state passed a law extending these same protections to the transgender community.[13] Although these state laws vary in their breadth—some ban discrimination only in a combination of employment, housing, public accommodations, or credit—only 21 states extend protections to public accommodations.[14] The Movement Advance Project estimates that 51% of the LGBT population lives in states where discrimination based on sexual orientation and/or gender identity is allowed.[15] While most would recoil at the thought of a business discriminating against someone based on their race, color, religion, sex, or national origin (all protected categories under the 1964 Civil Rights Act), nearly three-fifths of the states allow such discrimination based on sexual orientation and gender identity.[16]

Masterpiece argues that the business owner’s religious beliefs and the “expressive,” creative nature of cake-making protects the owner’s right to refuse service on both First Amendment free speech and religious liberty grounds.[17] For the Colorado Human Rights Division to demand compliance is, the argument goes, government-compelled speech.[18] The question then is whether there is a constitutional right for businesses open to the public to deny service if the product has an artistic quality.

As the brief for the two men explains—and as was cited in the Colorado Court of Appeals’ opinion—the Court already recognized in United States v. O’Brien (1968) that “when ‘speech’ and ‘non-speech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on First Amendment Freedoms.”[19] In that case, the Court deferred to the judgment of the legislative branch.[20] Yet, by pairing free speech with religious freedom, Masterpiece argues that strict scrutiny should be applied and that they are not seeking to overturn CADA but instead are seeking exemption for businesses that sell “expressive” products.[21] Respondents argue such an exemption would be limitless.[22] After all, it does not require much imagination to see that markets thrive on the creativity of their actors, and to participate in the market is an inherently expressive act. Whether one is a Subway “Sandwich Artist” or a carpenter, the selling of labor is the selling of skills and creativity. For the pretense of expression to be sufficient to deny service corrupts the notion that a government has the interest and power to protect its citizens—be it through law or regulation.


As the public sorts through oral argument transcripts much attention will be paid to Chief Justice John Roberts and Justice Anthony Kennedy. Despite a conservative thread that runs through their jurisprudence, both have written enough to suggest they would be inclined to reject Masterpiece’s First Amendment arguments. At least one legal commentator believes Chief Justice Roberts will build upon his written opinions in Rumsfeld v. FAIR (2006) and McCullen v. Coakley (2014).[23] In FAIR the Court held that regulating an organization’s conduct was not the same as compelling speech, and that “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”[24] He continued, “The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.”[25] In McCullen, despite overturning a state abortion clinic buffer law, Roberts noted that “a facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics.”[26] More recently, in Expressions Hair Design v. Schneiderman (2017), Roberts reiterated FAIR’s reasoning that a law could be upheld where its “effect on speech would be only incidental to its primary effect on conduct . . . .”[27] If Roberts remains consistent, Masterpiece’s free speech arguments may ring hollow.

As for Justice Anthony Kennedy, LGBT rights advocates may find hope in his authoring every major Supreme Court-level LGBT rights opinion. For example, in Romers v. Evans (1996) the court overruled on Equal Protection grounds a Colorado constitutional amendment preventing gays and lesbians from achieving protected status.[28] In Lawrence v. Texas (2003) the Court overturned state anti-sodomy laws.[29] Then in Obergefell the Court recognized a constitutional right to marriage equality.[30] Despite Kennedy’s sympathy toward LGBT issues, it is not coincidental that Masterpiece is making a freedom of speech argument—at least part of Kennedy’s reputation as a “swing voter” stems from his aggressive support for free speech.[31] After all, it will not be lost on history that the same Justice who wrote in Obergefell that same-sex couples had the freedom to marry also wrote in Citizens United v. FEC (2010) that corporations have free speech rights.[32]

Because both Roberts and Kennedy may be reluctant to overturn the few LGBT nondiscrimination laws scattered across the country, it is possible that they may seek a middle ground. They may rule against Masterpiece yet privately question whether there is sufficient momentum for a holding that expands these protections to every state. Thus, they may decide to keep the status quo, leaving LGBT rights to Congress and the individual states. Not only would this send the wrong message to millions of Americans, it would suggest that LGBT discrimination is not a human rights issue but a political one. Given this possibility—and the repercussions that would flow from it—LGBT rights advocates should be prepared and ready to keep fighting on the state—and even federal district—level.


In the best-case scenario, Congress could pass the Employment Non-Discrimination Act (ENDA), expanding its proposed protections to include the full gamut of employment, housing, public accommodations, credit, and state employees.[33] Failing that, advocates could follow the models of other states, learning from the organizing, coalition-building, and lobbying that went into passing nondiscrimination legislation.[34] Alternatively, if the Supreme Court does not fully close the door to judicial action, advocates could try to replicate the 7th Circuit’s opinion in Hively v. Ivy Tech Community College of Indiana (2017).[35] In that case, a lesbian woman successfully argued that to be discriminated against on the basis of her sexual orientation was in fact a form of discrimination based on sex, a protected category in the 1964 Civil Rights Act.[36] While some may find this argument farfetched (as in fact one dissenting appellate judge did),[37] it is not hard to see that objecting to someone’s sexual orientation because it does not align with antiquated perceptions of proper relationships for the proper sex is discrimination based on sex.


While Masterpiece is challenging only the CADA provisions that apply to public accommodations, even an exemption for businesses that produce “expressive” products would open the door to future lawsuits. It would not take long for this exemption to flow into the provisions that extend to credit, housing, and employment—not just in Colorado, but nationwide. Thus, Masterpiece is about more than free speech, freedom of religion, and cake—it is about creating a more inclusive, just society that builds upon the promise of Obergefell. As one of the plaintiffs said of his experience, “What should have been a happy day for us turned into a humiliating and dehumanizing experience because of the way we were treated.”[38] The Court’s decision in Obergefell was a watershed moment, but there is clearly more work to be done.

  1. Obergefell v. Hodges, 135 S. Ct. 2584 (2015).
  2. Jerome Hunt, A History of the Employment Non-Discrimination Act, Center for American Progress (July 19, 2011, 9:00 AM), (noting that Congress’ refusal to amend the 1964 Civil Rights Act has led to a patchwork of state LGBT nondiscrimination laws).
  3. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, SCOTUS Blog (2017) (last visited Dec. 7, 2017).
  4. Masterpiece Cakeshop v. Colorado Civil Rights Commission, American Civil Liberties Union (2017) (last visited Dec. 7, 2017).
  5. Id.
  6. Colorado Anti-Discrimination Act (CADA), Colo. Rev. Stat. §§ 24-34-301–24-34-804.
  7. Masterpiece Cakeshop, supra note 4.
  8. Craig v. Masterpiece Cakeshop, Inc., 2015 COA 115 (Colo. App. 2015).
  9. Masterpiece Cakeshop, supra note 4.
  10. Id.
  11. Joshua Preston, “Senator Allan Spear and the Minnesota Human Rights Act,” 65 Minn. History 3, 76 (2016).
  12. Id.
  13. Id.
  14. Non-Discrimination Laws, Movement Advancement Project, (last visited Nov. 22, 2017).
  15. Id.
  16. Id.
  17. Reply Brief for Petitioners, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, __ U.S. __ (2018) (No. 16-111).
  18. Id.
  19. Craig, supra note 8, at 56 (quoting U.S. v. O’Brien, 391 U.S. 367, at 376 (1968)).
  20. Id.
  21. Reply Brief for Petitioners, supra note 17.
  22. Brief for Respondents Charlie Craig and David Mullins.
  23. David H. Gans, Swing Justice John Roberts, Slate (Nov. 8, 2017, 2:29 PM),
  24. Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47, at 62 (2006).
  25. Id.
  26. McCullen v. Coakley, 134 S. Ct. 2518, at 2531 (2014).
  27. Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144, 1151 (2017).
  28. Romers v. Evans, 517 U.S. 620 (1996).
  29. Lawrence v. Texas, 539 U.S. 558 (2003).
  30. Obergefell v. Hodges, 576 U.S. __ (2015).
  31. Patrick D. Schmidt & David A. Yalof, “The ‘Swing Voter’ Revisited: Justice Anthony Kennedy and the First Amendment Right of Free Speech,” 57 Pol. Res. Q. 2, 209 (June 2004).
  32. Citizens United v. F.E.C., 558 U.S. 310 (2010).
  33. Past proposed versions ENDA have limited its protections to the domains employment. To ensure members of the LGBT community have the full rights ensured to heterosexuals, ENDA would need to be revised to extend protections to housing, public accommodations, credit, and state employees. See Hunt, supra note 2.
  34. See, e.g., Preston supra note 11.
  35. Hively v. Ivy Tech Community College of Indiana, 853 F.3d 339 (7th Cir. 2017).
  36. Id.
  37. Id. (Sykes, J., dissenting) (writing that the majority is not “faithful to the statutory text, read fairly, as a reasonable person would have understood it when it was adopted. The result is a statutory amendment courtesy of unelected judges.”).
  38. “Colorado Civil Rights Commission Finds Bakery Discriminated Against Gay Couple,” Am. Civ. Liberties Union (May 30, 2014),