BY CHRIS JOHNSON, WASHINGTON BLADE
Charlie Craig and David Mullins didn’t expect to be the new face of the LGBT rights movement, but that responsibility will be thrust upon them in a matter of weeks as the U.S. Supreme Court hears their case over being denied a wedding cake in Colorado at Masterpiece Cakeshop.
The two are key figures in the case challenging Colorado’s non-discrimination law, which bars discrimination in public accommodations on the basis of sexual orientation. Jack Phillips, the owner of Masterpiece Cakeshop, refused to make a wedding cake for the Denver-based couple on the basis that it would violate his religious beliefs as a Christian.
In an exclusive interview with the Washington Blade, Craig, 37, and Mullins, 33, said they’ve been anticipating the oral arguments in the case — set for Dec. 5 — with intense emotions.
Mullins said he’s been filled with “trepidation and excitement” since the Supreme Court agreed to hear the lawsuit in June.
“I will definitely say I don’t think anyone in the country is prepared to hear that a case they are party to is going to be argued before the Supreme Court,” Mullins said. “That was definitely a hard thing for us to wrap our minds around.”
The day of oral arguments for the court on Dec. 5 is actually the anniversary for the first date of the couple seven years ago. (Recognizing the occasion, Craig said “maybe it’s good luck.”)
Craig said the two met through a mutual best friend and were friends for a good year before dating. At a time when same-sex marriage was legal in limited places and not in their home state of Colorado, the two nonetheless decided to marry.
Although many couples arrange dramatic engagement proposals, Mullins said the couple had a “cute story” that wasn’t very dramatic.
“In all reality, we were just lying on the couch together one Sunday morning,” Mullins said. “I think it was Charlie who turned me. He was like, ‘You know. I really would marry you.’ And I thought about it and I was like, ‘I would marry you, too.’ And we sort of sat there for a minute and we were like, ‘So should we get married? And we decided to get married.’ It was a very natural, casual moment, which was really kind of how our relationship was.”
Craig added he later discovered Mullins had been socking away money to buy wedding rings. (The two have a pair of three-diamond rings. Craig’s is made of white gold, but Mullins’s is comprised of cobalt because he’s allergic to silver and gold.)
Because same-sex marriage wasn’t yet legal in Colorado, the couple decided to marry in Provincetown, Mass. The Bay State, first in the country with marriage equality, legalized same-sex marriage as a result of a court order by the Massachusetts Supreme Court in 2003.
The two planned to have 30 friends and family members fly up to Massachusetts for the ceremony, and have a hometown reception in Colorado. But then there was the matter of the wedding cake.
Craig said the host for the Denver reception party used Masterpiece Cakeshop for earlier clients and recommended the bakery based on its service and close proximity.
“We looked up the website and were like, yeah, OK, they look like something that we would want,” Craig said.
On the fateful day, July 19, 2012, Mullins and Craig proceeded to Masterpiece Cakeshop and brought along Craig’s mother. Because she doesn’t live in Denver and was in town for a conference that day, the wedding cake purchase would be her only opportunity to take part in the planning.
Mullins said the three went in “really excited” and Craig came in with a binder of ideas, but “it all went wrong immediately” after they sat down with Phillips.
“He immediately asked us who the cake was for and we said it was for us, and he told us he would not make a cake for a same-sex wedding,” Mullins said. “And what followed was a horrible pregnant pause. We were just mortified and embarrassed and quickly we just got up and we left.”
When the couple entered the parking lot, Mullins said they became emotional and broke down in tears — a moment they said was all the more “painful and profoundly embarrassing” because Craig’s mother was present.
The couple said they had no idea Phillips sought to operate his business consistent with this Christian beliefs, nor that he had a policy of refusing wedding cakes to same-sex couples.
Craig and Mullins quickly found relief from the LGBT community and supporters after a Facebook post, which quickly went viral worldwide in a couple days.
As a result of the Facebook post, a friend informed the couple that Phillips’ actions were a violation of state law in Colorado — something Mullins said the couple wasn’t aware of previously.
“We actually were unaware that there was a law in Colorado against what happened,” Mullins said. “It actually took a relative of Charlie’s looking something up and connecting us the next day to actually tell us there was an anti-discrimination statute in Colorado that covered public accommodations discrimination.”
Another Colorado shop, Lora’s Donuts & Bakery Shop, offered to provide the wedding cake the couple ultimately used for their celebration. The cake had rainbow layering to represent solidarity with the LGBT community.
But there still was the matter of the discrimination. Mullins said the couple spoke with the LGBT legal group Lambda Legal about their rights under state law, then the American Civil Liberties Union — which represents them in the case — helped them further and filed a complaint on their behalf in 2013.
“Eventually, someone at the ACLU found us and we spoke to them, and we decided to move forward with the complaint,” Mullins said. “They sort of helped us file the paperwork a little bit, and then after that and much discussion on their part, they decided to take up the case.”
Prior to the complaint, the couple hadn’t had significant experience in LGBT advocacy. Craig, an alumnus of University of Wyoming in Laramie, said 15 years ago he was a board member of a student LGBT group that sought to raise awareness for the Matthew Shepard Foundation and HIV testing, and Mullins said he couldn’t recall any instance of prior LGBT work.
“This was kind of my awakening,” Mullins said.
James Esseks, director of the ACLU Lesbian Gay Bisexual Transgender & HIV Project, said by filing a complaint, the couple took the lead in the fight to ensure equal rights for LGBT people.
“No one should ever have to experience the kind of pain and humiliation that Charlie and Dave were put through,” Esseks said. “They’ve shown real courage to stand up for the rights of all of us and we’re proud to stand with them as they take this fight to the Supreme Court. We all deserve the freedom to go out in public without being turned away because of who we are.”
At the state level, the couple had success many times over. In December 2013, an administrative judge ruled the bakery had illegally discriminated against the couple — a decision affirmed by the Colorado Civil Rights Commission.
Masterpiece Cakeshop wasn’t penalized with monetary damages, but required to take remedial measures to comply with the law, institute comprehensive staff training and issue quarterly compliance reports for two years on these corrections in addition to documenting all patrons denied service at the bakery.
Mullins said the litigation “is not about whether or not there’s somewhere else we could get a cake” when asked why the couple is insistent Masterpiece Cakeshop be required to serve wedding cakes to same-sex couples.
“Our case is about basic access to public accommodations,” Mullins added. “We were not turned away from Masterpiece Cakeshop because of any design we asked for, we were turned away because we’re a gay couple, and we pursued this because we didn’t want another couple to go through what we had gone through.”
Mullins said if Masterpiece Cakeshop followed state law “we would have received the same service that any other person would have received, we would have been treated with respect.”
As litigation proceeded, Craig said the couple discovered Masterpiece Cakeshop turned away four or five same-sex couples before them. Although court documents say Phillips had offered the couple any ready-made product in the store in lieu of a wedding cake, Craig said one of these couples had sought cupcakes and were denied service.
In 2015, a three-judge panel on the Colorado Court of Appeals affirmed the decision of the commission. Later, the Colorado Supreme Court refused to hear the case upon appeal from Masterpiece Cakeshop.
That seemed like the end of the road for Masterpiece Cakeshop, But in a last ditch effort, the bakery, represented by the anti-LGBT legal firm Alliance Defending Freedom, petitioned the U.S. Supreme Court for review, citing issues of freedom of religion and expression.
To the surprise of just about everyone, the U.S. Supreme Court agreed to accept the petition in June. (The petition had remained pending before the Supreme Court for some time and was taken up shortly after confirmation to the bench of U.S. Associate Justice Neil Gorsuch.)
Why did the Supreme Court agree to take up the case? After consistent rulings at the state level in favor of the couple, could justices have in mind overturning those decisions in favor of allowing anti-LGBT discrimination?
The answer, Mullins said, is completely in the minds of the Supreme Court justices and no one else — at least until justices render their decision in the case.
“Obviously there have been numerous public accommodations cases that have happened in numerous states, and in my wholly un-legal opinion, I think that maybe the reason they took our case was because there was no disagreement over the facts of how anything went down,” Mullins said. “It’s also possible that they just felt it was time to take up one and ours was the one that was on their desk when they made that decision.”
Mullins and Craig — with Craig’s mother in tow — plan to travel to D.C. to witness the oral arguments firsthand at the Supreme Court on Dec. 5. Mullins expressed excitement about seeing “Ruth Bader Ginsburg’s neckpiece” while hearing the case.
The couple has a busy schedule planned for the time they’re in D.C., which includes three speeches at different rallies. That’s consistent with the nearly 150 media interviews in which the couple has participated, ranging from the LGBT press to the New York Times.
“I think it’s important for people to see us just for the fact of we’re standing up for ourselves,” Craig said. “We experienced discrimination and experienced what it means to follow it through this far.”
During the arguments, the ACLU will represent the couple, another attorney will represent the Colorado Civil Rights Commission in defense of the non-discrimination and Alliance Defending Freedom will make Masterpiece Cakeshop’s arguments.
But another lawyer from the U.S. Justice Department under U.S. Attorney General Jeff Sessions may also take part: U.S. Solicitor General Noel Francisco. Francisco sought time to speak before the Supreme Court after the Justice Department filed a friend-of-the-court brief in favor of Masterpiece Cakeshop.
Mullins said the participation of the Trump administration in the litigation is “definitely notable,” but ultimately the Supreme Court will be making the decision in the case.
“In the end, the Supreme Court is nine justices and nine votes and they will make their decisions, and so, in the end, the buck stops with them,” Mullins said.
Contrary to the experiences of many plaintiffs in LGBT rights cases, Mullins said the couple hasn’t faced significant backlash since the Supreme Court agreed to hear the case.
“If anything, I feel like it made the story larger and it helped reach some people and changed some minds, of people who weren’t as aware of the story beforehand,” Mullins said.
The Supreme Court ruling in the Masterpiece Cakeshop will likely be issued next year and could be a milestone for the LGBT rights movement.
Craig, however, said the impact is difficult to determine because the ruling could affect just Colorado law or similar statutes nationwide.
“In the smallest sense they can validate what Colorado has already said, that he violated anti-discrimination laws here, and that would set a precedent for Colorado,” Craig said. “It could also set a precedent for the other 20 states that have the same public accommodations laws, or it could be as big as they’re sending a message to the whole nation that discriminating against gay people is wrong.”
In the event of a loss before the Supreme Court, Mullins said the decision would have deleterious consequences not just for LGBT people, but other marginalized groups.
“If the Supreme Court found that a business owner could refuse to serve someone based on their strongly held religious beliefs, could a hotel owner refuse to rent a room to an interracial couple because his faith believed the races were not meant to mix, or could a business owner refuse to hire a single mother because his faith believed that mothers should be married?” Mullins said. “A loss at the Supreme Court could open the door to many forms of discrimination that have long been considered wrong in our society, and not just ones that involve LGBT people.”
Win or lose, Craig said the lawsuit will be worth the effort because it means not just standing up for the thousands of people who’ve told the couple about their own discrimination stories as the litigation proceeded.
“I feel like of course we’re standing up for ourselves, but the important thing is and what the Supreme Court decision is going to decide, is we’re standing up for these thousands of other people who are discriminated against all the time, and that’s really what keeps us going,” Craig said.