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The latest Masterpiece Cakeshop case didn’t resolve the big questions. These ones could.

Queer&There

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The latest Masterpiece Cakeshop court battle is over, but the bigger questions around religious freedom and LGBTQ discrimination remain.

Colorado Attorney General Phil Weiser and Christian baker Jack Phillips both dropped their legal pursuits against each other on March 5.

This was the second time Masterpiece Cakeshop had been challenged. The first case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, arose out of Phillips’ refusal to bake a wedding cake for gay couple and ended up in the U.S. Supreme Court, which found in Phillips’ favor in June 2018.

Masterpiece faced a second anti-discrimination complaint in 2017 after Phillips declined to bake a cake intended to celebrate a gender transition. Phillips in turn sued the CCRC for a second time.

The U.S. Supreme Court intentionally left the overarching issue — whether public accommodations laws that ensure LGBTQ people are offered the same service as everyone else trump the right to discriminate based on religion or free expression — undecided when it ruled on the previous Masterpiece case, with justices instead focusing on how the CCRC handled their case against Phillips. The area of the law remains unsettled as several similar challenges bubble up in state and federal courts nationwide.



Law Professor Jim Oleske, who specializes in religion and the law at Lewis and Clark College in Portland, spoke to Colorado Matters about three cases that could come to define the issue. Two of the cases are represented by the same legal team as Jack Phillips’, the Arizona-based conservative legal organization the Alliance for Defending Freedom.

Klein v. Oregon Bureau of Labor and Industries: A similar case to that of Masterpiece Cakeshop emerged in Oregon. When the Sweet Cakes by Melissa bakery refused to sell a wedding cake to a same-sex couple, the state’s Bureau of Labor and Industries charged the small business with a $135,000 fine. The bakery owners sued. An Oregon appeals court upheld the order, and the Oregon Supreme Court declined to hear the case. Now the case awaits a petition to the U.S. Supreme Court, which could decide to hear the case or turn it away. It’s the case that’s furthest along, Oleske says.

The Sweet Cakes team wants to prove bias from the Oregon labor commissioner, the state’s equivalent of the Colorado commission, but Oleske believes they’re unlikely to succeed.

“It’s more likely it could be a vehicle for deciding the bigger issues,” he said.
Brush & Nib, et al. v. Phoenix: A case awaiting decision from the Arizona Supreme Court could define which businesses are eligible for defense on the grounds of artistic expression and free speech.

The Phoenix-based Brush & Nib Studio designs custom invitations for events, including weddings. The owners say making an invitation for a same-sex wedding would violate their Christian belief that marriage is only between a man and a woman. In advance of any complaints, they’ve filed a challenge to the city of Phoenix’s anti-discrimination law. The state Court of Appeals ruled in favor of the city’s ordinance in 2018.



Oleske said the case could help define what businesses qualify as art, therefore placing them under the protection of the First Amendment. Caterers and hotels would not qualify, for example, but calligraphers and photographers could.

“Some are arguing calligraphy is inherently expressive in a way that baking cakes is not or making floral arrangements is not,” Oleske said. “Of course then, you have to decide who’s on each side of that line.”

Arlene’s Flowers v. Washington: Shortly after the U.S. Supreme Court ruled on Masterpiece Cakeshop, it decided not to hear this case and asked the state Supreme Court to reconsider. In 2013, Barronelle Stutzman denied services from her shop Arlene’s Flowers to a same-sex couple who sought floral arrangements. The Washington Supreme Court previously ruled in favor of the couple.

Oleske said he expects to see a lot of “friend of the court” amicus briefs filed in this case’s second run at the state Supreme Court. Amicus briefs offer high courts additional insight and holistic perspective on the issues central to a case, and usually signal a legal battle’s importance and potential widespread consequences. For example, Oleske filed an amicus brief of his own on religion and law for the Masterpiece Cakeshop case in the U.S. Supreme Court.

“There’s a sense that this might be the case, the one that the Supreme Court takes up ultimately to resolve the issues that were left unresolved with Masterpiece,” Oleske said.

This article first appeared on cpr.org.

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