Gay marriage case is ‘ not about cake’
Justices to ponder anti- discrimination laws, free speech
WASHINGTON – In the pantheon of Supreme Court challenges, few have produced an outpouring of support and opposition like Colorado baker Jack Phillips’ refusal to design a wedding cake for a same- sex couple.
Over the past two months, the high court has been flooded with nearly 100 legal briefs, equally divided between the two sides, that raise lofty legal arguments about free speech and religious liberty, equal rights and anti- discrimination laws.
Only three issues in recent years — abortion, affirmative action and the Affordable Care Act, or Obamacare — come close to engendering as much emotion at the court as the continuing battle over same- sex marriage, now focused on a single cake that never was made.
“This case is not about the cake. It is about licensing discrimination,” said James Esseks, LGBT project director at the American Civil Liberties Union, which is representing Charlie Craig and David Mullins against Phillips.
Kristen Waggoner, senior vice president at Alliance Defending Freedom, which represents the baker, is ready for battle, too. “Marriages, weddings, are uniquely different,” she said, adding that Phillips “often attends that ceremony.”
Those two groups will argue the case before the justices next month, but they’re not alone in making their views known. In early September, some 50 groups filed legal papers in support of Phillips. This week, an equal number flooded the court with support for the gay couple. Both sides can claim backing from states and municipalities, senators and House members, businesses and religious groups.
Even bakers are split. A group of “cake artists” weighed in along with Phillips’ backers two months ago, although they claimed neutrality. They said their work, like his, “requires artistic exertion within an expressive endeavor to generate works of art.”
A separate group of chefs, backers and restaurateurs chimed in Monday, including Anthony Bourdain and Sam Kass, an assistant chef in President Obama’s White House.
“Even when prepared by celebrated chefs, food retains a clear purpose apart from its expressive component,” they wrote. “It is made to be eaten.”
The debate in Masterpiece Cakeshop v. Colorado Civil Rights Commission comes down to this: Can state and federal laws compel merchants to serve any and all customers? Or do constitutional rights of free speech and religious liberty allow for exemptions?
Those on Phillips’ side include a star witness: the Trump administration, which contends that designing wedding cakes is a form of expression protected by the First Amendment. Newly confirmed Solicitor General Noel Francisco will argue the case alongside Waggoner.
“When Phillips designs and creates a custom wedding cake for a specific couple and a specific wedding, he plays an active role in enabling that ritual, and he associates himself with the celebratory message conveyed,” the Justice Department argues.
The administration and others on Phillips’ side emphasize two Supreme Court precedents. In 1995, the court ruled that St. Patrick’s Day parade organizers had a right to exclude gay and lesbian participants. In 2000, it ruled that the Boy Scouts could exclude gays as troop leaders. In both cases, the court said the groups could not be forced to alter their messages.
Eighteen states, led by Texas, argue that’s a form of commandeering. “No government — even one with the best of intentions — may commandeer the artistic talents of its citizens by ordering them to create expression with which the government agrees but the artist does not,” their brief says.
The National Organization for Marriage, which played a leading role in fighting same- sex marriage at the Supreme Court in 2013 and 2015, cites other instances in which the high court has protected the right to exclude speech.
“Newspapers cannot be forced to print messages from those they criticize,” the group says in legal papers. “Car owners cannot be forced to display political messages, children cannot be forced to recite the Pledge of Allegiance, parades cannot be forced to include other viewpoints, utilities cannot be forced to include brochures for consumer advocates in the utility’s billing envelope, and government workers cannot be forced to even pay for the political speech of labor unions.”
Other groups go so far as to say that Phillips’ right to earn a living is jeopardized. He stopped making wedding cakes rather than serve same- sex marriages, eliminating about 40% of his business at the time.
Eleven Republican U. S. senators and 75 House members wrote that Americans would be forced to make “a choice between their conscience and their livelihood.”
For those who defend Colorado’s anti- discrimination law, the case is akin to the battle over the Civil Rights Act of 1964.
“I remember the signs saying ‘ Whites only’ and ‘ Colored only,’ ” said Rep. John Lewis, D- Ga.