Supreme Court tack­les case of baker ver­sus gay cou­ple

Santa Fe New Mexican - - REGION - By Adam Lip­tak

LAKE­WOOD, Colo. — Jack Phillips 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 at his bak­ery one re­cent morn­ing. “It’s a piece of 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 cel­e­brate their union.

“We asked for a cake,” Craig said. “We didn’t ask for a piece of art or for him to make a state­ment for us. He sim­ply turned us away be­cause of who we are.”

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, 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,” 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.

The Supreme Court has in re­cent years been ex­cep­tion­ally re­cep­tive to free speech ar­gu­ments. And it has ruled that the gov­ern­ment may not com­pel people to con­vey mes­sages that they do not be­lieve.

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. 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.

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 Phillips 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 has long rec­og­nized a First Amend­ment right not to be forced to speak.

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.

NICK COTE/THE NEW YORK TIMES

Jack Phillips at Mas­ter­piece Cakeshop, his bak­ery in Lake­wood, Colo. Phillips’ re­fusal to bake a wed­ding cake to cel­e­brate a same-sex mar­riage has led to a Supreme Court show­down that 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.

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