Cake is his ‘art.’ Can he deny it to a gay cou­ple?

Baker’s 2012 case to be ar­gued be­fore Supreme Court in fall

Pittsburgh Post-Gazette - - National - By Adam Lip­tak

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.

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