QUEER VOICES

Here's What's At Stake In The Supreme Court's Gay Wedding Cake Case

The baker says it’s about free speech, but the same-sex couple says it’s purely discrimination.

12/04/2017 18:44 EST | Updated 12/05/2017 18:22 EST
Kathryn Scott Osler/The Denver Post via Getty Images
Charlie Craig (left) and David Mullins (second from left) and their supporters protest against Masterpiece Cakeshop in August 2012.

The U.S. Supreme Court heard oral arguments on Tuesday in a case that could have huge ramifications for freedom of speech and protections against discrimination. But it all began with a same-sex couple who just wanted a special wedding cake.

In 2012, Masterpiece Cakeshop owner Jack Phillips pointed to his conservative Christian beliefs in refusing to make a custom wedding cake for Colorado couple Charlie Craig and David Mullins.

Phillips argues that when he designs his custom cakes, he is an artist and that he can’t be forced to use his artistic expression to send a message he finds religiously objectionable ― in this case, that any marriage other than one between a man and a woman should be celebrated. His lawyers say it is a matter of free speech.

Kristen Waggoner, an attorney with the Alliance Defending Freedom who is representing Phillips, reiterated this point before the justices on Tuesday. Waggoner said the baker creates a “temporary sculpture” when he designs a cake, through which he expresses himself creatively.

Some of the justices pushed back on this notion of artistic speech. “Why is there no speech in creating a wonderful hairdo? The makeup artist? It’s called an artist. It’s the makeup artist,” asked Justice Elena Kagan, according to BuzzFeed News.

Justice Sonia Sotomayor noted that “the primary purpose of any food is to be eaten” and said that self-described “sandwich artists” wouldn’t necessarily claim First Amendment protections for the food they sell.

The Trump administration is backing the baker’s cause. “Forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights,” the Justice Department wrote in an amicus brief filed in September.

But in refusing to make Craig and Mullins a custom cake, Phillips violated Colorado anti-discrimination law that prohibits businesses from denying services to people based on sexual orientation, among other factors. The Colorado Civil Rights Commission ruled against him in May 2014. 

Several court decisions later, the case reached the Supreme Court ― with the scope of free speech and anti-discrimination protections on the line.

The implications of Phillips’ claim that he should be able to deny the couple services based on his free speech rights as a Christian are “staggering,” American Civil Liberties Union attorneys representing Craig and Mullins wrote in a brief filed last year.

“People hold religious beliefs about a wide variety of things, including racial and
religious segregation and the role of women in society,” the ACLU lawyers wrote. “If religious motivation exempted businesses from anti-discrimination laws, government would be powerless to protect all Americans from the harms of invidious discrimination.”

The brief noted another religious freedom case, which came before the Supreme Court in 1968, revolving around a South Carolina barbecue chain that had refused to serve two black customers. Maurice Bessinger, the owner of Piggie Park, argued that he was legally justified in refusing service to black customers inside his restaurants due to his religious belief that there should not be “any integration of the races whatsoever.”

At the trial court level, U.S. District Judge Charles Earl Simons Jr. was not persuaded by that argument. He wrote: “Undoubtedly defendant Bessinger 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.”

By the time the case reached the Supreme Court, it was a debate about lawyers’ fees, but the justices still ruled against Bessinger, calling his religious freedom defense “patently frivolous.”

The NAACP Legal Defense and Educational Fund also held up that long-ago case in its amicus brief filed on behalf of Craig and Mullins: “The logic of Piggie Park and other precedents overwhelmingly rejecting religious justifications for racial discrimination apply squarely to the context of LGBTQ discrimination.”

But the Alliance Defending Freedom argues there is a difference between his case and those earlier disputes. Phillips’ bakery serves “people of all races, all faiths, all sexual orientations, and all walks of life,” the alliance wrote in a brief, and he had offered to sell Craig and Mullins a pre-made cake. He only refused to make them a custom cake, which Phillips’s lawyers said he has the right to do as a matter of artistic expression and free speech.

During Tuesday’s hearing, Justice Anthony Kennedy questioned why Phillips viewed his other cakes differently from his custom cakes. “Didn’t he express himself” when he made both kinds of cakes? Kennedy asked.

Waggoner responded that Phillips’ “speech has been completed” before people buy the already prepared cakes.

Kennedy seemed doubtful about both sides’ arguments, saying it was also “too facile” to attribute Phillips’ behavior to anti-gay discrimination. 

But LGBTQ advocates reject the idea that freedom of speech and artistic expression are what’s really at stake in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The issue here, they say, is the ability of ordinary commercial businesses to use religion to pick and choose which parts of anti-discrimination law they’ll obey.

“While the work that many people do is beautiful, businesses that sell products to the general public are not above the law just because there may be a creative element to their work,” Sarah Kate Ellis, president and CEO of GLAAD, said in a statement to HuffPost.

Phillips defended his decision at a recent rally, telling his supporters, “I don’t create custom designs for events or messages that conflict with my conscience.” Among the other celebrations and messages he said he wouldn’t bake for are “Halloween, bachelor or bachelorette parties, and anti-American cakes.”

Opponents of same-sex marriage have increasingly used religious freedom arguments to try to justify the refusal of services to LGBTQ people. Even with same-sex marriage now legal in all 50 states, some conservative Christians have argued they should be granted religious accommodations when they feel that serving gay couples would violate their beliefs.

Where those Christians argue that their faith is under attack, advocates for the LGBTQ community say they are the ones whose lives and livelihoods are at risk.

Already this year, LGBTQ rights have been compromised by several policy changes from the White House. In August, President Donald Trump proposed a ban on transgender individuals entering the military ― a plan that was shortly thereafter blocked by a district court. Attorney General Jeff Sessions issued a memo in October reversing workplace protections for transgender employees on the basis of “religious freedom.”

ACLU staff attorney Chase Strangio warned of the dangerous precedent that Phillips’ claim could set. “If the Supreme Court sides with the bakery, the systematic rejection of LGBTQ people from public life will gain legitimacy and anti-LGBTQ movements will grow stronger,” Strangio wrote in a September blog post.

“If a baker can reject LGBTQ people because of who we are, then what about the mechanic, the florist, the doctor, the teacher?” he wrote. “This is not about cake. This is not about art. This is about survival.”

This story has been updated with details from the Supreme Court oral argument.