Justin Cloyd, KLJ Staff Editor
On June 26, the Supreme Court granted certiorari on what will become one of the most talked about cases of 2017. The case involves a seemingly simple story: A religious baker refuses to serve a gay couple on the grounds of his religion. This story evokes immediate sympathies because of its kinship with the Civil Rights movement of the 50s and 60s. However, despite the inevitable connections, the core dispute of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission concerns a more compelling question: How far can our laws infringe upon civil liberties to protect civil rights?
The two conflicting arguments of the parties in this case illuminate the inevitable clash of these two fundamental principles of our society. The Baker’s argument follows a clear logical pattern: Marriage not between a man and a women is “at odds with his religious beliefs”; he considers making custom cakes artwork, as he “specially crafts every wedding cake he creates,” and it should be unconstitutional for a state law to force him to make a cake and thereby create art expressing an idea that conflicts with his religious convictions. On the other hand, James Esseks, director of the American Civil Liberties Union’s (ACLU) LGBT project, succinctly sums up the argument of the discriminated-against couple: “While the right to one’s religious beliefs is fundamental, a license to discriminate is not. Same-sex couples . . . deserve to be treated with the same dignity and respect as anyone else.”
The outcome of this conflict, taken in the light of the Colorado Court of Appeals’ decision and similar decisions in other state courts, appears bleak for the Baker. In order to succeed on his appeal, the Baker needs to either show that the Colorado law compels him to speak in ways that violate his constitutional right to free expression, or that the law infringes upon his right to believe or express his preferred religion. The standards for showing either of these two infringements, as set by the Supreme Court, create tall hurdles to clear.
The first hurdle to clear involves proving that making a cake constitutes inherently expressive conduct. In interpreting the Free Speech Clause of the First Amendment, the Supreme Court found that the clause also prevents the government from forcing an individual to speak someone else’s message. In order to qualify for protection under this interpretation, the Baker needs to establish that baking a cake qualifies as “inherently expressive conduct.” The test for inherently expressive conduct consists of two elements: (1) The actor of the conduct needs to intend to send a message, and (2) the message has to have a great likelihood to be understood by those who view it. In deciding this issue, the Colorado court determined that, regardless of whether or not the baker intended to send a message in making the cake, those who viewed the cake would more likely attribute its message to the cake purchasers rather than the maker, and therefore the law did not violate the First Amendment by compelling him to make a cake.
The second obstacle, and one much harder to get over, involves proving that the Colorado law creates an unconstitutional burden on the Baker’s free exercise of religion. This obstacle’s insurmountable challenge comes from the Supreme Court decision Employment Division, Department of Human Resources of Oregon v. Smith. In Smith, the court overruled a previously more protective standard for one that permits a law to infringe upon the right of free exercise of religion so long as that law is a “valid and neutral law of general applicability.” The Colorado Court of Appeals applied this standard to rule that the Colorado law “forbids all discrimination based on sexual orientation regardless of its motivation,” and therefore satisfies the minimal requirements imposed by the Supreme Court.
Since the Baker appears unlikely to be able to successfully attack the Colorado statute on constitutional grounds using existing Supreme Court standards, some questions need to be asked: Why appeal to the Supreme Court at all? Is it just a last ditch effort to get a higher court to apply the same standards and reach a different conclusion? And if that’s the case, why did the Supreme Court grant the certiorari? The answer to all these questions might lie in the Baker’s third constitutional argument, an argument dismissed without any real scrutiny by the Colorado Court of Appeals: the hybrid approach to the exercise of religion.
The hybrid approach to the constitutional right to the free exercise of religion stems from Smith. Scalia, in trying to reconcile past decisions by the court with the court’s interpretation that a general and neutral law withstands constitutional scrutiny if it burdens religious freedoms, comments that “the only decisions we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press.” This type of reasoning, if applied by the Supreme Court, would bolster the Baker’s argument. And the fact that the Colorado Court of Appeals dismissed this claim out of hand would explain why he felt compelled to appeal to a higher court.
The hybrid approach’s uncertain nature would also explain why the Supreme Court decided to take the case. The Colorado Court of Appeals did not make a mistake by not scrutinizing the Baker’s claims under the hybrid umbrella. Many jurisdictions in the country consider Scalia’s comments in Smith to be dicta, and the jurisdictions that do apply it don’t use a uniform standard. If the Supreme Court planned to touch on Scalia’s hybrid analysis, it would explain why it decided to take the case, as Masterpiece Cakeshop provides the perfect vehicle for cleaning up a muddy doctrine.
Law’s have expressive effects. By extension, the Supreme Court’s interpretation of laws, including its interpretation of the Supreme Law of the Land, has an expressive effect. Behind the obfuscation of the storm of headlines that will inevitably drop after the ultimate ruling in this case will lay the true impact of the resolution of Masterpiece Cakeshop. That impact will be in the decision’s expressive effects, helping to answer a long simmering question: What will our country value more headed into the future, the civil liberties as enshrined by the constitution, or the civil rights guaranteed to all people, whether through man’s law or otherwise, to live free of discrimination?
 J.D. Expected May 2019.
 Masterpiece Cakeshop, scotusblog, http://www.scotusblog.com/case-files/cases/masterpiece-cakeshop-ltd-v-colorado-civil-rights-commn/ (last visited Sept. 27, 2017).
 Craig v. Masterpiece Cakeshop, Inc., 370 P.3d 272 (Colo. App. 2015).
 Brief of Petition at 15, Masterpiece Cakeshop, Inc. v. Colorado Civil Rights Com’n, No. 16–111 (US filed on Aug. 31, 2017).
 Colorado Appeals Court Rule in Favor of Same Sex Couple, ACLU (June 26, 2017), https://www.aclu.org/news/supreme-court-will-hear-aclu-case-about-cake-shop-refusing-service-same-sex-couple-0.
 See State v. Arlene’s Flowers, Inc., 389 P.3d 543 (Wash. 2017) (declaring flower shop protected by neither the Free Speech or Free Exercise Clause of First Amendment when refusing to sale same-sex couple flowers); Elane Photography, LLC. v. Vanessa Willock 309 P.3d 53 (N.M. 2013).
 Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 63 (2006)
 Craig, 370 P.3d at 285.
 Texas v. Johnson, 419 U.S. 397, 404 (1989) (quoting Spencer v. State of Wash., 418 U.S. 405, 409 (1974)).
 Craig, 370 P.3d at 287–288.
 Id. at 289 (quoting Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 877 (1990), superseded by statute, Religious Freedom Restoration Act, 42 U.S.C.A. § 2000bb–1 (West 1997) (superseding statute only applies to federal laws)).
 Id. at 291.
 Id. at 292.
 Emp’t Div., Dep’t of Human Res. v. Smith, 494 U.S. 872, 881 (1990), superseded by statute on other grounds, Religious Freedom Restoration Act, 42 U.S.C.A. § 2000bb–1 (West 1997).
 Ryan S. Rummage, In Combination: Using Hybrid Rights To Expand Religious Liberty, 64 Emory L.J. 1175, 1189–1197.