Show­down bakes in Colorado

Case of a Den­ver-area man who re­fused to make a cake for a male cou­ple heads to Supreme Court

Orlando Sentinel - - NATION & WORLD - By David G. Sav­age

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LAKE­WOOD, Colo. — “Sorry, guys, I don’t make cakes for same-sex wed­dings.”

With that blunt com­ment, Jack Phillips, a baker who de­signs cus­tom wed­ding cakes, sent two men out the door.

And he set off a le­gal bat­tle be­tween re­li­gious lib­erty and gay rights that comes be­fore the U.S. Supreme Court this fall.

The Trump administration this month sided with Phillips and ar­gued that dec­o­rat­ing a wed­ding cake is a type of “ex­pres­sive con­duct,” sim­i­lar to burn­ing a flag or march­ing in a pa­rade. If so, they say, the Con­sti­tu­tion’s free speech pro­tec­tion gives the baker, a de­vout Chris­tian, the right to refuse to par­tic­i­pate in the mar­riage cel­e­bra­tion of two men.

But Colorado has barred Phillips from mak­ing any more wed­ding cakes be­cause he re­fuses to abide by its civil rights law. Since 2008, it has re­quired pub­lic busi­nesses to serve all cus­tomers equally and with­out re­gard to their sex­ual ori­en­ta­tion. The state, al­lied with the Amer­i­can Civil Lib­er­ties Union, says this case is about dis­crim­i­na­tion, not the re­li­gious lib­erty of a shop owner.

Phillips’ shop, Masterpiece Cakeshop, is full of brightly col­ored cook­ies, cup­cakes and birth­day cakes. These days, it at­tracts cus­tomers from afar who make a spe­cial trip to show their sup­port. “Our prayers are with you,” one woman said as she or­dered cook­ies re­cently.

Phillips, 61, re­called grow­ing up in this com­mu­nity when it was mostly trees, fields and two-lane roads. His bake shop pros­pered as the city grew into a busy, com­mer­cial sub­urb of Den­ver. By 2012, he had 10 em­ploy­ees. Then and now, Phillips says, he does not refuse to serve cus­tomers for be­ing gay.

“I will serve any­one who comes in,” he said. “And I think I can make friends with them.”

But to Char­lie Craig and Dave Mullins, Masterpiece was far from friendly when they stopped by in the sum­mer of 2012.

Craig, 37, grew up in a small town in Wy­oming and came to Den­ver to en­joy the free­dom of the big city. He met Mullins through a mu­tual friend, and they dated for sev­eral years. They were plan­ning to be mar­ried in Province­town, Mass. — where same-sex mar­riages had been le­gal since 2003 — and then re­turn to Den­ver for a cel­e­bra­tion with their fam­ily and friends. A re­cep­tion plan­ner rec­om­mended Masterpiece.

“We went in with a bunch of ideas,” said Mullins, 33.

“But (Phillips) came in, asked who the cake was for and then he said he wouldn’t make a cake for us. We were shocked and mor­ti­fied and got up and left.”

It all took less than 30 sec­onds. “I ad­mit we were very emo­tional. We hadn’t gone through any­thing like this. We were em­bar­rassed, and we felt de­graded,” Mullins said.

Craig says Phillips “started to ex­plain he had gay friends. And he would sell us cook­ies or cup­cakes. But we left.”

Phillips re­calls their anger. “They swore at me, flipped me off and stormed out,” he said.

The con­flict took off on so­cial me­dia. “We went home and vented online to tell our friends what hap­pened,” Craig said.

Phillips said his phone started ring­ing and didn’t stop for sev­eral days. “They would ask, ‘Are you the baker who …?’ And then they would call me names and swear. It was very hate­ful,” he said.

Phillips said he en­dured death threats, garbage thrown at his shop and thou­sands of neg­a­tive mes­sages on his shop’s web­site.

Mullins and Craig were also dis­turbed by the num­ber of ugly, mean com­ments they re­ceived online.

The cou­ple filed a dis­crim­i­na­tion com­plaint with the state civil rights com­mis­sion. “We didn’t want any­one else to have to go through this,” Craig said.

Fed­eral law does not for­bid em­ploy­ers or pub­lic busi­nesses from dis­crim­i­nat­ing against peo­ple be­cause of their sex­ual ori­en­ta­tion. But Colorado and 20 states adopted anti-dis­crim­i­na­tion laws to pro­tect gays and les­bians. On the na­tional map, these laws mir­ror the di­vide be­tween blue and red states. The broader civil rights laws ap­ply mostly along the East Coast from Mary­land to Maine, in the up­per Mid­west and on the West Coast. No state in the South, on the Great Plains or in the Moun­tain re­gion has such a law, ex­cept for Colorado, Ne­vada and New Mex­ico.

The Colorado law says no “place of pub­lic ac­com­mo­da­tions,” such as a ho­tel, restau­rant or re­tail store, may deny peo­ple “the full and equal en­joy­ment of the goods (or) ser­vices … be­cause of dis­abil­ity, race, creed, color, sex, sex­ual ori­en­ta­tion, mar­i­tal sta­tus, na­tional ori­gin or an­ces­try.”

In re­sponse to the com­plaint from Craig and Mullins, an ad­min­is­tra­tive judge de­cided Phillips vi­o­lated the law by re­fus­ing to pro­vide them equal ser­vice. The seven-mem­ber Colorado Civil Rights Com­mis­sion and a state ap­peals court agreed. Phillips “does not con­vey a mes­sage sup­port­ing same­sex mar­riages merely by abid­ing by the law,” the state court con­cluded.

Faced with the re­mark­able rise of the gay rights move­ment, con­ser­va­tive Chris­tians have be­gun to push back against that ar­gu­ment, say­ing the na­tion’s tra­di­tion of re­li­gious lib­erty should shield them from be­ing forced to en­dorse or par­tic­i­pate in any way in a same-sex mar­riage.

“Tol­er­ance should be a two-way street,” said Kris­ten Wag­goner, lawyer for the Ari­zona-based Al­liance De­fend­ing Free­dom who rep­re­sents Phillips. “The First Amend­ment pro­tects Jack’s right to cre­ate artis­tic ex­pres­sion that is con­sis­tent with his core con­vic­tions.”

Louise Melling, deputy di­rec­tor of the ACLU, warned such an ex­emp­tion would cre­ate “a con­sti­tu­tional right to dis­crim­i­nate founded on your re­li­gion. What are the lim­its to that?”

Sup­port­ers of Colorado’s law worry about how a re­li­gious ex­emp­tion could be ap­plied. Could a land­lord turn away un­mar­ried cou­ples? Would a Mus­lim baker be per­mit­ted to refuse ser­vice to Jews or Chris­tians, or vice versa?

Un­til this year, re­li­gious rights claims had lit­tle suc­cess in the courts. Lawyers for Al­liance De­fend­ing Free­dom pressed sim­i­lar law­suits on be­half of a pho­tog­ra­pher in New Mex­ico and a florist from Washington state. Both lost in state courts. And three years ago, the Supreme Court de­clined to hear a 1st Amend­ment claim from the pho­tog­ra­pher who re­fused to shoot photos of a com­mit­ment cer­e­mony for two women.

In Jan­uary, the high court was due to act on the ap­peal from Phillips. At the time, the eight jus­tices were wait­ing for Pres­i­dent Don­ald Trump to an­nounce his nom­i­nee to fill the ninth seat. His choice, Jus­tice Neil Gor­such, is a Coloradan, a con­ser­va­tive and a champion of re­li­gious lib­erty. Gor­such ar­rived in April, and on the last day of the term, the jus­tices an­nounced they would hear the Colorado case.

The out­come will prob­a­bly de­pend on Jus­tice An­thony Kennedy, the 81-yearold Repub­li­can ap­pointee who en­gi­neered the key rul­ings that de­creed equal rights and “dig­nity” for gays and les­bians. When he joined the court in 1988, the jus­tices had re­cently dealt a de­mor­al­iz­ing de­feat to the gay rights move­ment by up­hold­ing state laws that made gay sex a crime. Kennedy, how­ever, had other ideas.

In 1996, he spoke for the court in strik­ing down a Colorado voter ini­tia­tive that de­nied gays and les­bians all pro­tec­tions from dis­crim­i­na­tion. The law was “born of an­i­mos­ity” and can­not stand, Kennedy said. In 2003, his opin­ion for a 5-4 ma­jor­ity struck down the sex crime laws, which he said “de­mean” gays and deny them the proper “re­spect for their pri­vate lives.” And two years ago, he spoke for the 5-4 ma­jor­ity that up­held same­sex mar­riages as a con­sti­tu­tional right.

Kennedy con­sid­ered re­tire­ment last year but de­cided not to.

For­mer clerks and oth­ers who know Kennedy say they are not sure how he will see the Colorado case. He has been a champion of free speech claims. And two years ago, while up­hold­ing gay mar­riages, Kennedy said the “First Amend­ment en­sures … proper pro­tec­tion” for peo­ple “with the ut­most, sin­cere con­vic­tion that, by di­vine pre­cepts, same-sex mar­riage should not be con­doned.”

Now the court will try to de­cide the scope of that “proper pro­tec­tion.”

Its past rul­ings dif­fer­ent di­rec­tions.

At times, the court has ruled the gov­ern­ment may not force some­one by law to take ac­tion that car­ries a par­tic­u­lar mes­sage. In a case from World War II, the jus­tices ruled that chil­dren of Je­ho­vah’s Wit­nesses can­not be com­pelled to salute the flag at school. This 1943 rul­ing, in West Vir­ginia State Board of Ed­u­ca­tion v. Bar­nette, is seen as cre­at­ing the “com­pelled speech” doc­trine.

This rule was in­voked in early dis­putes over gay rights.

In 1995, the court ruled unan­i­mously that the South Bos­ton war veter­ans who spon­sor the an­nual St. Pa­trick’s Day pa­rade could be not forced to in­clude in their ranks a group of Ir­ish gays and les­bians.

The state’s high court had said the ex­clu­sion vi­o­lated the state’s civil rights act, but the jus­tices over­ruled that de­ci­sion. They said the pa­rade was an ex­pres­sive act, and “un­der the 1st Amend­ment, a speaker has the au­ton­omy to choose the con­tent of his own mes­sage.”

And in 2000, the jus­tices in a 5-4 de­ci­sion over­turned a cut in New Jersey state civil rights de­ci­sion and said the Boy Scouts had a right to “ex­pres­sive as­so­ci­a­tion” that al­lowed them to ex­clude from their ranks an openly gay scout­mas­ter. The lawyers for the cake maker rely heav­ily on these prece­dents.

But the court took a dif­fer­ent tack in a case de­cided shortly af­ter Chief Jus­tice John Roberts joined the court. A coali­tion of lead­ing law schools sued to chal­lenge a fed­eral law that re­quired them to give mil­i­tary re­cruiters equal ac­cess on cam­pus, even though the Pen­tagon then openly dis­crim­i­nated against gays and les­bians. Two lower courts agreed this pol­icy vi­o­lated their free speech rights be­cause it forced them to en­gage in con­duct that en­dorsed some­thing they op­posed — in this in­stance, dis­crim­i­na­tion based on sex­ual ori­en­ta­tion.

The high court dis­agreed in an opin­ion writ­ten by Roberts. The law “reg­u­lates con­duct, not speech,” he wrote in 2006. It does not “re­quire them to say any­thing.” It just means law schools must open their doors to mil­i­tary re­cruiters on an equal ba­sis, he said.

The Colorado courts cited this de­ci­sion and con­cluded Phillips was not be­ing re­quired to en­dorse same-sex mar­riage but to open his doors and bake cakes on an equal ba­sis.

Phillips in­sisted that de­sign­ing a cus­tom cake for two men would cross a line for him be­cause the Bi­ble speaks of mar­riage as be­tween a man and a woman. “I shouldn’t be forced to cre­ate a cake that goes against my faith,” he said.

He said he has re­fused to make cakes with a Hal­loween theme be­cause it in­volves witch­craft as well as cakes with an anti-Amer­i­can theme. He avoids any pro­mo­tion of al­co­hol. Once, he said, he turned away a man who wanted to cel­e­brate his im­pend­ing di­vorce with half of a cake, be­cause the idea was hurt­ful to the woman who was be­ing di­vorced.

Mullins and Craig counter that it was hurt­ful to turn them away, and they dis­pute their case in­volves free ex­pres­sion.

“We didn’t have a chance to talk about the de­tails of a cake or a mes­sage. We were turned away,” Mullins said.

BREN­NAN LINSLEY/AP 2014

Char­lie Craig, left, and Dave Mullins filed a dis­crim­i­na­tion com­plaint with the state civil rights com­mis­sion. “We didn’t want any­one else to have to go through this,” Craig said.

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