The U.S. Supreme Court has decided to hear a case set to pit Christian religious beliefs against gay rights over a never-baked wedding cake in Colorado.
In 2012, the owner of Masterpiece Cakeshop in Lakewood, Jack Phillips, refused to make a cake for Charlie Craig and David Mullins, a gay couple who were getting married in Massachusetts but celebrating in their home state of Colorado. The baker said making the cake would be in conflict with his religious beliefs, and that he had a First Amendment right of artistic, religious and free speech expression to say no.
Colorado, however, prohibits public businesses like Masterpiece from refusing to provide services based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”
So Mullins and Craig took Phillips before Colorado’s Civil Rights Commission, a regulatory agency that enforces Colorado’s anti-discrimination laws. In 2014, the agency ruled the cake maker violated state law. More than that, the agency ordered the bakery to change its policy of not providing services based on a customer’s sexual orientation.
Then, in 2015, the Colorado Court of Appeals heard the case, ruling unanimously that the cake maker had violated the state’s anti-discrimination law. The judges ruled that creating the cake for the gay couple does not mean the cake maker is expressing support for gay marriage.
Additionally, the justices cited a previous court decision in a case challenging the 1964 Civil Rights Act, as follows:
Undoubtedly defendant . . . has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This Court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishment upon the ground that to do so would violate his sacred religious beliefs
If the Colorado cake maker, who is in his 60s and belongs to a Baptist-rooted church, wants to oppose same-sex marriage, fine, the judges said. The cake maker could even say so on his website or on a sign in his store. But under Colorado law he is prohibited from “picking and choosing customers based on their sexual orientation,” they ruled.
In 2015, the U.S. Supreme Court legalized same-sex marriage nationwide. The cake shop issue will be the latest big LGBTQ case for the nation’s highest court, now in the Trump era, and is also certain to throw down battle lines of a major culture war with Colorado at its center.
So why is the U.S. Supreme Court hearing this case?
Phillips, the shop’s owner, disagreed with the Colorado Court of Appeal’s ruling, so he appealed that decision to the Colorado Supreme Court.
The state’s highest court declined to hear the case. And so in August of last year, Phillips and his lawyers asked the U.S. Supreme Court to weigh in. It has remained in legal purgatory, until this week — during Pride month, no less — when the nation’s highest court announced it had agreed to take it on as Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. (Note: Originally the case was set as Charlie Craig and David Mullins v. Masterpiece Cakeshop, but since Phillips is attempting to overturn the previous ruling by the Colorado Civil Rights Commission, he is now the plaintiff.)
Often the U.S. Supreme Court decides to hear cases because two appeals courts in different circuits ruled differently on a similar case. But that didn’t happen here.
The U.S. Supreme Court often also agrees to hear cases that can shape how the courts interpret the U.S. Constitution, and this case could certainly do that. No public date is set, but the court begins its next term in October.
What are the legal arguments?
Cake shop owner Phillips is represented by lawyers for the Arizona-based Alliance for Defending Freedom, a law group whose stated mission is “to keep the doors open for the Gospel by advocating for religious liberty, the sanctity of life, and marriage and family.”
Greg Scott, a spokesman for ADF, told The Colorado Independent that Phillips did not discriminate because of someone’s identity or status, but rather just declined to “engage in speech and participate in the celebration of an event in violation of his core convictions.”
In their opening brief to the U.S. Supreme Court, the lawyers wrote that “it is undisputed” that the Colorado Civil Rights Commission does not apply state law to ban an African-American cake artist from “refusing to create a cake promoting white-supremacism for the Aryan Nation,” “an Islamic cake artist from refusing to create a cake denigrating the Quran for the Westboro Baptist Church,” and “three secular cake artists from refusing to create cakes opposing same-sex marriage for a Christian patron.” Therefore, they argued, the state law should not prohibit their client’s “polite declining to create a cake celebrating same-sex marriage on religious grounds when he is happy to create other items for gay and lesbian clients.”
The cake maker and shop owner is an artist, the lawyers wrote, and his faith “compels him to use his artistic talents to promote only messages that align with his religious beliefs.” And he even loses money by doing so, they wrote. But the state has ordered him to create cakes “celebrating same-sex wedding ceremonies,” with which he disagrees.
So the U.S. Supreme Court, they wrote, needs to rule in this case “to alleviate the stark choice Colorado offers those who, like Phillips, earn a living through artistic means: either use your talents to create expression that conflicts with your religious beliefs about marriage, or suffer punishment under Colorado’s public accommodation law.”
“A victory for Jack’s freedom to create the art he chooses and his freedom from coercive mandates that force citizens to speak as the state commands or face severe punishment is a victory for everyone, whether you agree with Jack’s views or not,” says Greg Scott, a spokesman for Phillips’ attorneys.
On the opposing side of this high-profile Colorado case are the plaintiffs and their attorneys at the American Civil Liberties Union.
“Religious freedom is an important fundamental value in our country. It’s protected under the Constitution,” ACLU of Colorado legal director Mark Silverstein told The Colorado Independent. “But religious freedom doesn’t give someone a license to discriminate. I think that’s what this case is about.”
Silverstein says he is hoping the case will function to sustain a principle that one’s religion does not give one the right of exemption from state anti-discrimination laws.
“Colorado says if you open a business, you operate by the public rules,” he says. “The public rules are you welcome the public in your business and you don’t discriminate on the basis of race, religion, sexual orientation, etc.”
And this is not a states’ rights case, Silverstein says, it’s a “human rights” case.
What is the couple who sued thinking right now?
When Charlie Craig and David Mullins first heard the news that justices on the nation’s highest court would hear a case involving their personal experience, there was some “gravity” to that knowledge, they said.
The couple, who live in Denver and were vacationing in Puerto Rico on June 26, the day the news broke, said in a phone call that while they are disappointed their case is still swirling around the courts five years later, at each point in the process thus far courts have found in their favor.
“We strongly believe in the legal foundation of our case,” Mullen said.
The couple recalled how the story went down in 2012 after their wedding planner recommended Masterpiece Cakeshop in the small city outside Denver. When Craig called to set up an appointment he didn’t mention it would be a same-sex ceremony. “I didn’t think that it would matter,” he said, recalling the phone call.
It was during the sit-down appointment when Phillips asked if the wedding was for the two men, they said.
“We said ‘yes, this will be our wedding cake,’ and he stopped us immediately and said, ‘I do not make cakes for same-sex couples,’” Craig said. A long pause followed. One of their mothers was there. They were mortified, Craig said, so they left.
After returning home, the couple wrote about their experience on Facebook, and the post went viral.
“Over the next couple of days we ended up experiencing an outpouring of support,” Mullen said. “Eventually we came to the conclusion that we wanted to pursue this not for ourselves but because all those people who were supporting us, they weren’t just receive us as individuals. They were supporting the principles that LGBT people deserve to receive equal service in places of public accommodation. And that’s why we decided to go forward with this case.”
Phillips in 2015 offered his version of events from that day to The Daily Signal, a publication of the conservative Heritage Foundation. He characterized the conversation as lasting no longer than 30 seconds in which he wasn’t able to explain his Christian views.
“I said, ‘You know, I’ll make you a birthday cake, shower cake, I’ll sell you cookies and brownies, I just don’t do cakes for same-sex weddings,'” Phillips said. “At which point they stomped out. One went out one door, the other went out the other door, swearing at me and flipping me off.”
He said he got at least one death threat.
“What’s important is that I’m being obedient to Christ,” Phillips told The Daily Signal about the stand he took. “He’s given me this business and if he were here, he wouldn’t make the cake. If he were my employee, I wouldn’t force him to make the cake and participate in it because it doesn’t honor God. The Bible calls it a sin.”
What does this case mean for Colorado?
It’s hard to say how the court might rule given its current makeup and because of swing-vote Justice Anthony Kennedy who has shown previous support for LGBT rights and also defended religious liberty, says Scott Moss, a professor of law at the University of Colorado.
But if there’s a ruling in favor of the couple, it means that the “status quo in Colorado remains,” he says. ”Currently, a private business can discriminate on multiple criteria, but the minute it becomes a public business it cannot.”
However, if the Supreme Court rules in favor of the cake shop, Colorado’s anti-discrimination law would be irrelevant, since the First Amendment right would override it and all other state and federal statutes barring discrimination, Scott says.
And that would be a big change to public life in Colorado, as well as about 22 other states that have similar anti-discrimination laws.
Wait, what? So could a cake maker already do what Phillips did legally in another state?
Had shop owner Jack Phillips lived and worked in one of the other states in the nearly half the country that doesn’t currently have a public accommodations law protecting discrimination based on sexual orientation, there likely wouldn’t have been a court case about it, says Silverstein of the ACLU.
Colorado has that protection under its state law— as of about 15 years ago. And even that could technically change if lawmakers were so inclined. Republicans for the past three years have tried and failed in Colorado.
“We know that in the majority of states, a couple can get married on a Sunday and then go to work on Monday and get fired or denied housing because of who they are,” says Laura “Pinky” Reinsch, the political director for One Colorado, an LGBT advocacy group.
Here’s a map of which states do and don’t have public accommodations laws, by the Human Rights Campaign:
Where does Neil Gorsuch, the newest justice who is from Colorado, fit in to all this?
Helping decide this case with origins in Colorado will be Neil Gorsuch, the court’s newest justice— and a Colorado native.
Throughout his judicial career, the conservative jurist who was nominated by President Donald Trump, has consistently ruled in favor of religious freedom. His most famous ruling came in a high-profile and controversial 2013 decision known as Hobby Lobby v. Sebelius.
The craft store chain didn’t want the government to force it to provide insurance coverage for contraception, something it objected to on religious grounds. Gorsuch, who sat on the 10th Circuit Court of Appeals at the time, sided with the appeals court’s majority opinion that used the logic of the U.S. Supreme Court’s money-in-politics Citizens United decision to recognize constitutional free speech protections for corporations on religious grounds.
At the time, the ACLU of Colorado used similar language in its opposition to that opinion as it uses in opposing the actions of the cake shop owner now.
“Religious liberty is a fundamental freedom,” said ACLU of Colorado’s Deputy Legal Director Louise Melling back then. “We are all entitled to our religious beliefs but not to impose those beliefs on others. A business like Hobby Lobby cannot use religion to discriminate by denying women coverage for contraception.”
At the time of Gorsuch’s nomination, he was cheered as someone who fought for religious liberty on the court. Amy Vitale, fellow at the nonprofit Becket Fund for Religious Liberty, wrote how Gorsuch would “defend” religious liberty upon his nomination.
Writing for The Atlantic magazine, Garrett Epps, who teaches constitutional law at the University of Baltimore, argued Gorsuch might have a “blind spot” in the area of religious freedom because of the Hobby Lobby decision.
Asked how he felt about Gorsuch on the bench hearing this case, the ACLU’s Silverstein told The Independent, “I don’t know how he’s going to come out, but he’s only one of nine.”
What are LGBTQ rights groups in Colorado saying?
At least one of them is concerned the Supreme Court decided to take the case because of the possibility of an undesired outcome, especially in a political climate that encourages the introduction of religious freedom laws in statehouses across the country.
One Colorado’s Reinsch also says she worries the court’s makeup could change by the time the nine justices hear the Masterpiece case. Specifically, she told The Colorado Independent, she is concerned about the possibility that Justice Anthony Kennedy, who is 80 years old and often a swing vote on LGBTQ-related decisions— he wrote the court’s opinion legalizing same-sex marriage but voted in favor of The Hobby Lobby decision— could retire, and Trump would nominate a more conservative replacement, solidifying a 5-4 conservative majority.
“We’re also concerned because generally the Supreme Court takes cases where there’s conflict on [lower court] rulings, and there isn’t on this one, and the fact that the rulings have been so consistent in Colorado, it’s just very interesting that they decided to take it up,” Reinsch says.
The Supreme Court’s announcement on Monday that its justices would hear the case is also worth noting. June 26 is the anniversary of three prior U.S. Supreme Court decisions that advanced LGBTQ equality.
“Whether or not it intentionally happened on the anniversary, this could poke holes in all the work that the groups like ours and others across the country have been doing for the last decade or two,” says Reinsch.
Lucy Haggard contributed to this report.
Photo by angela n. for Creative Commons on Flickr.