The owner of Masterpiece Cakeshop in Colorado, Mr. Phillips considers himself a "cake artist" and a sincere Christian. His "calling" as a cake artist inspired him to produce custom-made wedding cakes of great beauty and complexity; his calling as a Christian (as he understands Christ's teachings) compelled him to refuse to create custom-made wedding cakes that would celebrate same sex marriage. Unfortunately for Mr. Phillips, the people of the state of Colorado, acting through their elected representatives, told him that he must either create custom-made wedding cakes for all individuals who can be legally married in America, or cease to create custom-made wedding cakes for anyone, thus effectively crippling his business and preventing him from supporting his family in the way he knows best.

Of course, it could well be said that the choice Mr. Phillips faced is a choice faced by any individual living in a jurisdiction that has anti-discrimination laws with which the individual happens to disagree. Presumably, a baker in America who sincerely believed that interracial marriage was immoral, and who refused to create wedding cakes celebrating that type of marriage (perhaps wedding cakes that had little bride and groom figurines of different races atop them) would face the exact same choice faced by Mr. Phillips.

In June of 2018, the Supreme Court weighed in on the choice faced by Mr. Phillips when it decided the Masterpiece Cakeshop v. Colorado Civil Rights Commissioncase. The now retired Justice Anthony Kennedy wrote the majority opinion in that case. Some commentators speculated that Justice Kennedy was trying to have his cake and eat it too; others thought his decision was half-baked. It turned out that Mr. Phillips won, but only because, according to Justice Kennedy's reasoning, the members of the Colorado Civil Rights Commission who ruled that Mr. Phillips must create custom-made wedding cakes for same sex couples acted with animus toward Mr. Phillips' religion when they made their decision. if a different Colorado Civil Rights Commission, made up of a wholly different set of commissioners, were also to decide that Mr. Phillips must create custom-made wedding cakes for same sex couples, but were to come to that decision without in any way evidencing animus toward any religion whatsoever, would that decision be valid?

It is unlikely that Mr. Phillips will find himself before the Supreme Court again. But it is a virtual certainty that sooner or later (and probably sooner rather than later) the Supreme Court will hear another case involving a merchant who claims that at least some of the products he or shecreatesare, at least in part, "speech" within the meaning of the Supreme Court's precedents and who refuses to create these productsi.e., this "speech"for use in the celebration of a same-sex wedding ceremony. Several cases are prime candidates for the Supreme Court to hear.

focus on Justice Clarence Thomas's concurrence in the case. Of the five separate opinions in the case (one for the Court, three concurrences, and a dissent), Justice Thomas' is the one that most clearly and forcefully engages the free speech issues involved in this dispute. The other opinions focus more on the religious aspects, and hence the "free exercise" issues, involved in this dispute.

Referring specifically to Mr. Phillips' refusal to create a custom-made wedding cake for a same sex couple, Justice Thomas writes, "Because Phillips' conduct (as described by the Colorado Court of Appeals) was expressive, Colorado's public-accommodations law cannot penalize it unless the law withstands strict scrutiny." And then Justice Thomas provides the following analysis, which I want you to consider very carefully. He writes, "Although this Court sometimes reviews regulations of expressive conduct under the more lenient test articulated inO'Brien, that test does not apply unless the government would have punished the conduct regardless of its expressive component. See, e.g.,Barnes, 501 U. S., at 566-572 (applyingO'Briento evaluate the application of a general nudity ban to nude dancing);Clark, 468 U. S., at 293 (applyingO'Briento evaluate the application of a general camping ban to a demonstration in the park). Here, however, Colorado would not be punishing Phillips if he refused to create any custom wedding cakes; it is punishing him because he refuses to create custom wedding cakes that express approval of same-sex marriage."

1.What, specifically, is theO'BrienTest to which Justice Thomas is referring?state and explain the four prongs of theO'BrienTest.

2. Which prong or prongs of theO'BrienTest does Justice Thomas appear to believe were incorrectly applied by Colorado in this case. In other words, in Justice Thomas' mind, what prong or prongs of theO'BrienTest, whencorrectlyapplied, distinguish Mr. Phillips' case from the case ofBarnes v. Glen Theatre, Inc.orClark v. Community for Creative Nonviolence?

3.Do you agree or disagree with Justice Thomas' analysis on this point, and why? Presumably, if you agree with Justice Thomas' analysis you must also agree that Mr. Phillips should not be forced to create custom-made wedding cakes for same sex couples even if he creates custom-made wedding cakes for opposite sex couples. But, if you disagree with Justice Thomas' analysis on this point, you might still agree (for a different reason) that Mr. Phillips should not be forced to create custom-made wedding cakes for same sex couples even if he creates custom-made wedding cakes for opposite sex couples. Or you might think that Mr. Phillips should be forced to create custom-made wedding cakes for same sex couples if he creates custom-made wedding cakes for opposite sex couples. So, if you disagree with Justice Thomas' analysis above, also say whether you agree or disagree that Mr. Phillips should be forced to create custom-made wedding cakes for same sex couples if he creates custom-made wedding cakes for opposite sex couples, and why.