Andrew Koppelman

Andrew Koppelman is John Paul Stevens Professor of Law at Northwestern University. His latest books are The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press) and Defending American Religious Neutrality (Harvard University Press).  

Recent Articles

Masterpiece Cakeshop, the Sequel: the Baker Is Back in Court

Colorado baker Jack Phillips claims that he is being harassed by the state in a new tussle over cakes, celebrations, and discrimination law.

Jack Phillips, the Colorado baker who recently won his Supreme Court case over whether he could refuse to bake a cake for a same-sex wedding, claims that his home state is persecuting him again. The Colorado Civil Rights Commission found in June that he discriminated against another potential customer—this time a transgender woman who is a Denver attorney. He is suing the state in federal district court, demanding an end to what he regards as its harassment. Although he ought to lose this case, he has a legitimate grievance. In the earlier Supreme Court case, Phillips asked the Court to hold that he had a First Amendment right to refuse, based on free speech or freedom of religion grounds. Wedding cakes, he argued, that celebrate same-sex marriages have a message with which he disagrees, and he claimed that he should not be forced to send such a message. Celebrating such marriages is also contrary to his religious beliefs. The Court didn’t decide that question, but it...

The Press Is Wrong on Masterpiece Cakeshop. The Baker Lost.

Bakery owner Jack Phillips got the decision he wanted, but the next time he turns away a same-sex couple, he will lose his case. 

The press is reporting that the Christian baker who refused to bake a cake for a same-sex wedding has won his case in the Supreme Court. That is technically accurate but deeply misleading. He did get the decision against him reversed, but the next time he turns away a same-sex couple (as he has said he will do), he will lose his case. The Court’s opinion provides no tangible help for the baker or other religious objectors to antidiscrimination laws, though it offers them some important moral encouragement. The facts of Masterpiece Cakeshop v. Colorado Civil Rights Commission are simple. Charlie Craig and David Mullins visited the Masterpiece bakery and looked through a photo album of custom-designed cakes. When the owner, Jack Phillips, greeted them, they told him (according to his own testimony) that they “wanted a wedding cake for ‘our wedding.’” Phillips told them that he did not create wedding cakes for same-sex weddings. They left immediately without...

Baking Chaos: Masterpiece Cakeshop Argument Misses the Mark

The oral arguments may sow confusion in other areas like the Trump travel ban.

Olivier Douliery/Abaca Press/Sipa via AP Images
Tuesday’s oral argument in Masterpiece Cakeshop v. Colorado, in which a baker claims a free speech right to refuse to make a cake for a same-sex wedding, suggested that a majority of the Court may be inclined to rule for the baker. But the most coherent way for the justices to do that would signify almost nothing about the larger question of how to resolve the tension between same-sex rights and religious liberty. Instead, it would complicate President Trump’s life in, of all things, the apparently unrelated travel ban case. The baker, Jack Phillips, claims that his cakes are expressive works of art, and that making a cake for a same-sex wedding would force him to send a message of approval of same-sex marriage, which he rejects for religious reasons. He’s willing to sell premade cakes to same-sex couples, but not wedding cakes made to order. The trouble with his claim is that it leaves mysterious which activities would be immunized from anti-discrimination law. Lots...

The Gay Wedding Cake Case Isn’t About Free Speech

The inconvenient facts of Masterpiece Cakeshop

(AP Photo/Brennan Linsley)
On December 5, the Supreme Court will hear oral argument in Masterpiece Cakeshop , the case in which a baker claims that free speech protects his right to refuse to make a cake for a same-sex wedding. Although it is impossible to know how the Court will rule, I can confidently predict that if the baker wins, the justices’ explanation will be incoherent. There’s a lot of confusion, some of it intentional, over what this case is about. Here are the basic facts. Charlie Craig and David Mullins visited the Masterpiece bakery and looked through a photo album of custom-designed cakes. When the owner, Jack Phillips, greeted them, they told him (according to his own testimony) that they “wanted a wedding cake for ‘our wedding.’” Phillips told them that he did not create wedding cakes for same-sex weddings. They left immediately without discussing any details of their proposed wedding cake. The entire exchange lasted 20 seconds. Craig and Mullins then sued...