Lawyers seeing many layers in high-court ruling on baker
WASHINGTON» Colorado baker Jack Phillips wants to start making wedding cakes again, but court experts are far from united on what kind of legal landscape he would face if he once more refused to do work for a same-sex couple — despite his victory this week in the U.S. Supreme Court.
Some lawyers argued that Phillips’ actions remain discriminatory and that he needs to proceed carefully. Others saw the high-court ruling as leaving open a doorway for greater leverage of religion into corporate and civic life.
All agreed, however, that the question at the heart of the Phillips case — where freedom of religion ends and discrimination begins — remains unanswered, and
that both the marketplace and court system will continue to wrestle with that conflict for the immediate future.
For his part, Phillips said in two television appearances Tuesday that he hoped to return to the wedding industry after a sixyear legal battle that started when he declined to make a cake in 2012 for fiancés Charlie Craig and David Mullins.
“One of the main reasons (I got into baking) is because I love doing wedding cakes,” Phillips said on “Fox & Friends.”
But even Phillips seemed unsure whether he could move forward legally in the way that he planned.
“We’re just looking forward to hopefully getting back into the wedding business and we’ll see how the court ruling affects that,” said Phillips, who owns Masterpiece Cakeshop in Lakewood.
Alan Chen, a professor at the University of Denver’s Sturm College of Law, said if he were Phillips’ lawyer, he would “certainly think twice before advising him to return to his practice of turning away gay and lesbian couples who want to hire him to design a wedding cake.”
He cited Justice Anthony Kennedy’s opinion in which he wrote that it was “unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”
Said Chen: “The Supreme Court did not say that persons with religious objections are categorically exempt from laws prohibiting sexual orientation discrimination.”
Speaking to the high court decision, Colorado Attorney General Cynthia Coffman said the ruling left open several legal questions. But the one-time candidate for governor said it in no way undermined the state’s anti-discrimination act.
“The Court did make clear, however, that states like Colorado may continue to protect the LGBTQ community, reaffirming principles my office has consistently defended for the past six years,” she said. “The general rule was, and remains, that the First Amendment does not allow business owners to deny members of the community equal access to goods and services.”
James Esseks, director of the LGBT and HIV Project at the American Civil Liberties Union, took it one step farther.
“The Supreme Court gave the bakery a get-outof-jail-free card (Monday), but it’s a get-out-of-jail-free card that has a one-timeonly use,” Esseks said. “The bakery was asking for a constitutional right to discriminate, and it didn’t get that.”
Byron Henry, an appellate attorney with Scheef & Stone in Dallas, sees another wrinkle in the high court ruling. While he agrees it doesn’t undermine Colorado’s anti-discrimination law, he contended that it gives business owners more space to hold to seriously held convictions when it involves communicating a message or a form of artistic expression.
“Expressive conduct is the key here,” he said.
That means that a hardware store can’t refuse to sell woods and nails to someone building a gazebo for a same-sex marriage or other event they disagree with. And business owners can’t refuse to transact business with someone simply because of their sexual orientation.
“Phillips should fare well in the court if he holds to the same practice consistently — sells to everyone, makes cakes for everyone, gay or straight, but not to celebrate gay marriage,” Henry said.
Although same-sex ceremonies are at the center of many cases, broader protections for expressive conduct open up a host of questions and scenarios. Also, the court didn’t directly describe the providing of a cake, on which the case centered, as “expressive conduct.”
Future rulings are needed to flesh out the broader context, and those are coming. “We will see more cases come out of the appellate courts in the next six to eight months,” Henry said.
Eric Rassbach, an attorney with the Becket Fund for Religious Liberty, said the biggest change to come out of the Masterpiece Cakeshop case has little to do with the actions of shopkeepers.
Instead, he said government officials would be most impacted.
The reason has to do with how the court reached the 7-2 decision. Kennedy, in his ruling, essentially punted on the main legal conflict by focusing his judgment on the behavior of the Colorado Civil Rights Commission, which he described as unfairly hostile to Phillips’ religious beliefs.
Because of that, the strikes against Phillips were rendered moot.
Rassbach said that approach by the high court means that government officials could face more scrutiny for the way in which they debate policies that involve religion.
A hypothetical example, he said, would be disparaging comments about religion, or a specific religion, made by a City Council member during a debate over the zoning of a church or mosque.
“There is much more of a legal price to pay for what you could call political grandstanding,” said Rassbach, whose group has played a key role in major religious cases such as the 2014 Hobby Lobby decision.