DENVER — The Lakewood baker refused to make a wedding cake for a gay couple and the gay couple sued. Administrative Law Judge Robert Spencer heard arguments Wednesday and said he would likely rule on the case before the weekend.
Attorneys here made arguments pitting gay civil rights against religious freedom, writing another chapter in the story of a U.S. culture war that has raged in mainstream public sphere for decades but that now has mostly moved to the courts.
The Colorado attorney general originally filed the discrimination charge against Masterpiece Cakeshop and its owner, Jack Phillips, for refusing on Christian tenets to sell David Mullins and Charlie Craig a wedding cake in 2012. The ACLU intervened to represent Craig and Mullins.
The hearing comes after last week’s announcement that the Supreme Court will consider the Hobby Lobby case, perhaps the most high-profile religious freedom case now wending through the courts. Though that case is concerned with reproductive rights, the question hinges on religious freedom. Hobby Lobby, a private corporation, argues that the owners, acting on their Christian beliefs, may refuse health insurance to employees who might use it for contraception.
The Lakewood wedding cake case is one of a slew of similar cases filed around the country over the last year or so. Christian bakeries in states like Oregon have turned away gay customers and landed in court as a result, some of the bakers choosing to close down their shops rather than comply with anti-discrimination rulings. Phillips may well join those bakers. His lawyers say he still plans to close his shop if he’s required to serve wedding cakes to gay customers.
“Jack will not violate his religious beliefs, not when this living was chosen for him by his creator,” his attorney, Nicolle Martin, told the Colorado Independent. He’s been a god-fearing baker for 40 years, she said. “This is not something he’s going to sacrifice.
If the judge rules against him, Phillips plans to appeal.
Amanda Goad, an attorney with the ACLU’s LGBT Project, argued the cake shop’s policy violated Colorado’s anti-discriminatory public accommodation laws.
Though Phillips is free to “advocate vigorously” against gay marriage as is his first amendment right, Goad argued that he broke the law when his business refused to sell to Craig and Mullins based on their sexuality. Goad said Phillips’ religious beliefs do not trump Colorado laws meant to protect minorities.
Goad argued that this isn’t really a matter of free speech. She said there isn’t a real risk that the public would interpret the message of the cake as coming from the baker. That’s not the case with wedding cakes in general, she said, and it’s no different here. The “expression” would be tied to the customers who order the cake and suggest any writing that would appear on it and pay for it.
“In terms of the law, I think it’s very clear that discrimination against customers because of who they are is impermissible in this state,” Goad told the Independent.
Martin told the judge that the government and ACLU position would violate her client’s rights to free speech and freedom of religion.
“We stood for liberty, we defended religious liberty, we defended everything that Americans stand for,” she told the Independent.
In court, Martin argued that Philips did not discriminate because of sexual orientation, but preferred not to make cakes for specific “events,” like Halloween and gay weddings. She said Phillips’ actions are not discriminatory when the state itself doesn’t believe it discriminates against issuing same-sex couples marriage licenses.
Although the Colorado legislature passed civil unions for same-sex partners this year, voters approved Constitutional Amendment 43 in 2006 banning gay marriage. That means court battles are likely to continue cropping up in the state for years — until voters repeal the amendment or the Colorado Supreme Court overturns it or US Supreme Court outlaws anti-gay marriage laws coast to coast.
Phillips conceded that he has likely made cakes without knowing exactly what message they might be used to send.
“Yeah, I mean of course that’s going to happen in your day-to-day business,” Martin said. “Jack doesn’t have a litmus test in his business. Like I said, he serves everyone. He does not communicate all messages.”[Image via Melody Kramer on Flickr]