image: Weddbook

image: Weddbook

Imagine that you own a bakery and run it with your same-sex partner. One day, a man comes in and asks you to make a cake for him to bring to a rally in protest of gay marriage. Your reply: “No, sir, we will not do that.” How could you, after all, make a cake, celebrating something that stands in such staunch opposition of your own beliefs and those of your partner? You would have happily sold him any cake in the shop, but an anti-gay marriage cake was simply too much. That man later goes on to take legal action against you.

Something of a similar set of circumstances is tied to a non-hypothetical situation involving Denver, Colorado-based Jack Phillips. The facts in Phillips’ case are this: In 2012, David Mullins and Charlie Craig visited Phillips’ Masterpiece Cakeshop and asked him to design a cake for their upcoming wedding. Phillips, a devout Christian, who says he is opposed to same-sex marriage for religious reasons, told the couple he would gladly make a non-wedding cake for them or provide them with any other pastries, but could not make a cake specifically for their wedding, as it runs afoul of his beliefs.

“I didn’t want to use my artistic talents to create something that went against my Christian faith,” Phillips told CNN, noting that, in the past, he has also declined to make Halloween cakes due to a conflict with his religious views.  

“At [that] point they both stormed out,” Phillips said.

Mullins and Craig were able to find another bakery to make their cake, but they were not done with Phillips; they filed a complaint with the Colorado Civil Rights Commission, which handed them a favorable ruling, finding that Phillips was in violation of a state anti-discrimination law.

Thereafter, Phillips initiated legal action of his own, arguing in his complaint that requiring him to provide a wedding cake for a same-sex couple violated his constitutional right to Freedom of Speech and Free Exercise of Religion. In siding with the Mullins and Craig, the Colorado Court of Appeals held that while Colorado’s anti-discrimination law does not compel Phillips to “support or endorse any particular religious view,” it does, however, prohibit him from discriminating against Mullins and Craig – and any other potential customers – based on their sexual orientation.

Unsatisfied with the court’s decision, Phillips sought to appeal the case to the U.S. Supreme Court, whose justices agreed to take the case, something of a significant rarity, given how few writs of certiorari the Court grants (or in other words, how few cases the Court agrees to hear) during any given term. (Note: The Supreme Court is not legally required to hear every case – or even any of the cases – with which it is faced).

The issue before the Supreme Court in Phillips’ case: Does applying Colorado’s public accommodations law to force Phillips to create a cake that conflicts with his sincerely held religious beliefs about marriage violate the Free Speech or Free Exercise clauses of the First Amendment?

As noted by CNN, “Kristen K. Waggoner, a lawyer from the conservative Alliance Defending Freedom, who is representing Phillips, argued that the First Amendment guarantees him the right to decline to make wedding cakes that celebrate marriages that are in conflict with his religious beliefs. She said that Phillips is protected by two parts of the First Amendment: its protections of religious exercise and free speech.”

She argued that the Free Exercise clause forbids the Colorado Civil Rights Commission from punishing Phillips “and like-minded believers.” She also argued that the Supreme Court’s compelled speech doctrine “forbids the [Colorado Civil Rights Commission] from demanding that artists design custom expressions that conveys idea they deem objectionable.”

[For the uninitiated, the compelled speech doctrine essentially holds that much like how the First Amendment protects a person’s right to speak freely, it also includes the right to not speak at all. In short: The government may not mandate that an individual or a company make a statement that they would not otherwise make if given a choice, as that would alter the content of the statement. Known exceptions to this are surgeon-general warning statements on cigarette packages, warnings about drug side effects, and the labeling of foods to indicate ingredients].

For Mullins and Craig, who are being represented by the American Civil Liberties Union, the case is about far more than a cake and whether Phillips should be required to make one for their wedding. “It’s about the right of gay people to receive equal service,” Mullins told CNN.

“The question, rather, is whether the Constitution grants businesses open to the public the right to violate laws against discrimination in the commercial marketplace if the business happens to sell an artistic product,” says the ACLU’s David D. Cole. The answer, according to Cole, is a firm “no.”

While the Trump administration has openly sided with Phillips in the case, arguing that the issue falls “within the small set of applications of content-neutral laws that merit heightened scrutiny” from the courts, the government’s lawyers have explicitly drawn a line when it comes to race, telling the court that laws targeting race-based discrimination may survive heightened First Amendment scrutiny in part because racial bias “is a familiar and recurring evil that poses unique historical, constitutional and institutional concerns.”

The Supreme Court’s nine justices were said to appear equally divided during oral arguments for the case last week. A decision is expected by June 2018.