Wed­ding cakes are his ‘art.’ Does that mean this baker can deny one to a gay cou­ple?

The Buffalo News - - NATIONAL NEWS - 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.

Af­ter los­ing the court fight on same­sex 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.

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 has 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.

New York Times

Jack Phillips’ re­fusal to bake a wed­ding cake to cel­e­brate a same-sex mar­riage has led to a Supreme Court show­down on gay rights and free speech.

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