JUSTICE KENNEDY IS SEEN AS SWING VOTE ON CAKE CASE
RULING, FROM PAGE 1:
religious faith,” Phillips said.
Gay rights groups regard the case as a potent threat to the equality promised by the Supreme Court in 2015 when it said the Constitution guaranteed the right to same-sex marriage. A ruling in favor of Phillips, they said, would mark the marriages of gay couples as second-class unions unworthy of legal protection.
After losing the court fight on same-sex marriage, opponents regrouped and reframed their legal arguments, focusing on the rights of religious people. They say, for instance, that many businesses run on religious principles have a free speech right to violate laws that forbid discrimination against gay men and lesbians.
The argument has met with little success in the lower courts. But the Supreme Court has in recent years been exceptionally receptive to free speech arguments, whether pressed by churches, corporations, pharmaceutical companies, musicians or funeral protesters. And it has ruled that the government may not compel people to convey messages they do not believe.
It takes the votes of four justices to add a case to the Supreme Court’s docket, meaning at least that many thought Phillips’ case worthy of review. Earlier opinions suggest that the court will be closely divided in the case. The Trump administration, for its part, filed a brief urging the court to rule for Phillips on free speech grounds.
Craig said the free speech argument was a smoke screen. “It’s not about the cake,” he said. “It is about discrimination.”
If a bakery has a free speech right to discriminate, gay groups contend, then so do all businesses that may be said to engage in expression, including florists, photographers, tailors, choreographers, hair salons, restaurants, jewelers, architects and lawyers. A ruling for Phillips, they say, would amount to a broad mandate for discrimination.
The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111, will be argued in the late fall and is likely to turn on the vote of Justice Anthony M. Kennedy, who is simultaneously the court’s most prominent defender of gay rights and its most ardent supporter of free speech.
His majority opinion in Obergefell v. Hodges, the 2015 decision establishing a constitutional right to same-sex marriage, seemed to anticipate clashes like this one. Kennedy called for “an open and searching debate” between those who opposed same-sex marriage on religious grounds and those who considered such unions “proper or indeed essential.”
But the debate has instead turned into another battle in the culture wars, with sharp-edged litigation taking the place of the civil discussion Kennedy had invited. On one side are religious people who say the government should not force them to violate their principles to make a living. On the other are same-sex couples who say they are entitled to equal treatment from businesses open to the public.
Mullins and Craig have so far prevailed, winning before the Colorado civil rights commission and in the courts.
The Colorado Court of Appeals ruled that Phillips’ free speech rights had not been violated, noting that the couple had not discussed the cake’s design before Phillips turned them down. The court added that people seeing the cake would not understand Phillips to be making a statement and that he remained free to say what he liked about same-sex marriage in other settings.
The Alliance Defending Freedom, a conservative Christian group that represents Phillips, said in a brief that the Supreme Court had long recognized a First Amendment right not to be forced to speak. In 1977, for instance, the court ruled that New Hampshire could not require people to display license plates bearing the state’s motto, “Live Free or Die.”
A wedding cake created by Phillips, the group said, is “the iconic centerpiece of the marriage celebration” and “announces through Phillips’ voice that a marriage has occurred and should be celebrated.”
“The government can no more force Phillips to speak those messages with his lips than to express them through his art,” the brief said.
The couple’s meeting with Phillips five years ago was, both sides agree, short and unpleasant. The excited couple had a binder full of possible designs, but they never got to open it. Craig’s mother had tagged along to give advice, but she never got to offer it.
Phillips shut down the conversation as soon as he heard that a gay couple was getting married.
“I’ll make you birthday cakes, shower cakes, cookies, brownies,” Phillips recalled saying. “I just can’t make a cake for a samesex wedding.”
Mullins remembered being stunned.
“What followed was a horrible pregnant pause as what was happening really sunk in,” he said. “We were mortified and just felt degraded, and it was all the worse to have Charlie’s mom sitting there with us. You don’t want your mom to see something like that happen to you.”
Phillips’ bakery is in a modest strip mall, but it is homey and colorful, with a children’s play area, a desk bearing several Bibles and lots of fancy baked goods. One cake looked like a basket of flowers. Another was covered in a moonlit winter landscape rendered in frosting. A third bore a likeness of the Rev. Martin Luther King Jr.
Phillips, 61, grew emotional as he talked about the case.
“I have no problem serving anybody — gay, straight, Muslim, Hindu,” he said. “Everybody that comes in my door is welcome here, and any of the products I normally sell I’m glad to sell to anybody.”
But a custom-made wedding cake is another matter, he said.
“Because of my faith, I believe the Bible teaches clearly that it’s a man and a woman,” he said. Making a cake to celebrate something different, he said, “causes me to use the talents that I have to create an artistic expression that violates that faith.”
Mullins and Craig, speaking in the kitchen in their Denver home, rejected the distinctions Phillips drew.
“Our story is about us being turned away and discriminated against by a public business,” said Mullins, 33, an office manager, poet, musician and photographer.
Craig, 37, who works in interior design, said the episode at the bakery still haunted them. “The point isn’t that we could get a cake elsewhere,” Mullins said. “Of course we could get a cake somewhere else. This was about us being turned away from and denied service at a business because of who we are and who we love.”