Cake is his ‘art.’ Can he deny it to a gay couple?
Baker’s 2012 case to be argued before Supreme Court in fall
The New York Times
LAKEWOOD, Colo. — JackPhillips bakes beautiful cakes, and it is not a stretch to call him an artist. Five years ago, in a decision that has led to a Supreme Court showdown, he refused to use his skills to make a wedding cake to celebrate a same-sex marriage, saying it would violate his Christian faith and hijack his right to express himself.
“It’s more than just a cake,” he said recently. “It’s a pieceof art in so many ways.”
The couple he refused to serve, David Mullins and Charlie Craig, filed civil rights charges. They said they had been demeaned and humiliated as they sought to celebratetheir union.
“He simply turned us awaybecause of who we are,” Mr.Craig said.
At first blush, the case looked like a conflict between a state law banning discrimination and the First Amendment’s protection of religious freedom. But when the Supreme Court hears the case this fall, the arguments will mostly center on a different part of the First Amendment: its protection of free speech.
The government, Mr. Phillips contends, should not be allowed to compel him to endorse a message at odds with his beliefs.
“I’m being forced to use my creativity, my talents and my art for an event — a significant religious event — that violates my religious faith,” Mr. 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 Mr. Phillips, they said, would mark the marriages of gay couples as secondclass 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 that many businesses run on religious principles and have a right to free speech.
The argument has been met with little success in the lower courts. But the Supreme Court has in recent years been receptive to free speech arguments, whether pressed by churches, corporations, pharmaceutical companies, musicians or funeral protesters. And it has ruled the government may not compel people to convey messagesthey do not believe.
Mr. 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, jewelers, architects and lawyers. A ruling for Mr. Phillips, they say, would amount to a broad mandate for discrimination.
The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16111, will be argued in the late fall and is likely to turn on the vote of Justice Anthony 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 samesex marriage, seemed to anticipate clashes like this one. Justice 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 turned into a battle in the culture wars, with sharp-edged litigation taking the place of the civil discussion Justice Kennedy invited. On one side are religious people who say the government should not force them to violate their principles in order to make a living. On the other are same-sex couples who say they are entitled to equal treatment from businessesopen to the public.
Mr. Mullins and Mr. Craig have so far prevailed, winning before the Colorado civil rights commission and in the courts.
The Colorado Court of Appeals ruled that Mr. Phillips’ free speech rights had not been violated, noting that the couple had not discussed the cake’s design before Mr. Phillips turned them down. The courtadded that people seeing the cake would not understand Mr. Phillips to be making a statement and that he remained free to say what he liked about same-sex marriagein other settings.
The Alliance Defending Freedom, a conservative Christian group that represents Mr. Phillips, said in a brief that the Supreme Court has long recognized a First Amendment right not to be forcedto speak.
A wedding cake created by Mr. 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 thanto express them through his art,” the brief said.
The couple’s meeting with Mr. 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.
Mr. 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,” Mr. Phillips recalled saying. “I just can’t make a cake for a same-sex wedding.”
Mr. 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.”
Mr. Phillips’ bakery is in a modest strip mall, but is homey and colorful, with a children’s play area, a desk bearing several Bibles and many fancy baked goods. One cake looked like a basket of flowers. Another was covered in a moonlit winter landscape renderedin frosting.
Mr. 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 else, he said, “causes me to use the talents that I have to create an artistic expression that violates that faith.”
Mr. Mullins and Mr. Craig, speaking in the kitchen in their Denver home, rejected the distinctions Mr. Phillips drew.
“Our story is about us being turned away and discriminated against by a public business,” said Mr. Mullins, 33, an office manager, poet, musicianand photographer.
Mr. Craig, 37, who works in interior design, said the episode at the bakery still haunted them. “To this day, we still question whether talking about our relationship when we go in somewhere, we could be discriminatedagainst again,” he said.
They were formally married in 2012 in Provincetown, Mass., because samesex marriage was not yet lawful in Colorado. But the wedding reception was back home. Another baker supplied the cake.