BY LISA KEEN
The U.S. Supreme Court hears arguments Dec. 5, in yet another case with major consequences for LGBT people. This one will decide whether any common business vendor -a restaurant, a hotel, a taxicab – selling products or services to the public -can refuse to sell or accommodate LGBT persons by simply claiming to have a religious belief hostile to such persons.
In Masterpiece Cakeshop v. Colorado, a baker who prepares elaborate cakes for wedding receptions says that the mere act of selling any of his cakes for the reception of a same-sex couple amounts to “participating” in and supporting the wedding. The baker, Jack Phillips, claims to have a religious belief that opposes allowing marriage for same-sex couples. And he says that participating in a same-sex couple’s reception conflicts with that religious belief and his rights as an artist to create what he wants to create.
The case is one of the most-watched cases before the U.S. Supreme Court this session because a ruling in favor of the baker would enable just about any business to refuse service to just about any patron by claiming a religious hostility to that patron or a creative license to refuse service.
The Masterpiece Cakeshop case is the only argument the court will hear on Dec. 5. Here are some of the facts and issues to keep in mind as a flood of media coverage ensues:
When and where: The argument will take place from 10 to 11 a.m. Dec. 5, at the Supreme Court in Washington, D.C. Seating for the public is very limited, and persons interested in standing in the very long lines to get in often must arrive (or arrange for line-sitters) the day before the argument. However, audio recordings of major cases, such as this one, are usually available on the court’s website within a few hours of adjournment. And transcripts of the argument are also available on the same day on the court’s transcript page.
The laws in question: The case essentially pits a state law prohibiting sexual orientation discrimination in public accommodations against a federal law (the First Amendment to the Constitution) forbidding laws “prohibiting the free exercise of religion” or “abridging the freedom of speech.” The state law in this case is Colorado’s, but 20 other states have laws to prevent discrimination against LGBT people. And all states have laws prohibiting discrimination based on race, sex, and other factors. The Colorado law, like those of most other states, exempts any entity “principally used for religious purposes.”
The person challenging the state law: Jack Phillips, a “cake artist” and owner of the Masterpiece Cake bakery in a Denver suburb, refused to sell a cake to a same-sex couple because “the Bible teaches [same-sex marriage is] not an OK thing.” According to a Heritage Foundation publication, Phillips “belongs to a Baptist-rooted church.” Phillips said his personal religious beliefs and his artistic sensibility prevented him from selling a wedding cake to the couple for their wedding reception.
The couple challenging discrimination: Charlie Craig and David Mullins are a gay couple living in Colorado. They were married in Massachusetts in 2012, when the U.S. Supreme Court had not yet struck down state bans against marriage for same-sex couples (in Obergefell v. Hodges in 2015). After Phillips refused to sell them a cake for their reception, Mullins posted an account of the interaction on his Facebook page and urged friends to let the bakery “know you feel their policy is discriminatory,” reported the Denver Post. That prompted media attention and alerted the couple that the action violated state law. So they filed a complaint with the Colorado Civil Rights Commission.
The muddle: Phillips and his lawyers at the Alliance Defending Freedom have tried to shift the focus away from religious-based discrimination to the idea that laws should not dictate to “artists” what projects they create. On a June 2017 episode of the talk show The View, Phillips said he would sell the same-sex couple “anything” in his store but not a wedding cake. “It’s not turning them away, it’s just this event.” He later claimed, “I’m not judging these two gay men that came in, I’m just trying to preserve my right as an artist to decide which artistic endeavors to do and which I’m not.” The same-sex couple did not get a chance to ask Phillips to create an artistic endeavor just for them. He refused them service within “thirty seconds” or in “less than two minutes, according to his own accounts of the interaction. And Phillips’ website illustrates that most of the wedding cake designs he offers are neither religiously oriented or include a male-female image.
The state’s action: A state administrative judge, the Colorado Civil Rights Commission, and the Colorado Court of Appeals all ruled against Phillips. The Commission did not order Phillips to design cakes for same-sex weddings, as Phillips claims, but rather it ordered that he stop “refusing to sell them wedding cakes or any product [the baker] would sell to heterosexual couples.”
Chief arguments by baker: The state law violates two First Amendment rights: free exercise of religion and freedom of speech. Phillips argues that his Christian beliefs oppose same-sex marriage and that the work he puts into baking cakes and his selling them for various events amount to speech or “expression.”
Chief response by civil rights groups: Lawyers supporting the state law say the religious-based arguments here are recycled from the 1960s, when opponents of laws prohibiting discrimination based on race argued that it violated their religious beliefs to serve black customers in the same space as white customers. (See Newman v. Piggie Park case.) And they say the artistic expression arguments misidentify who the real “speaker” is in the marketplace; it is the buyer, who says ‘I will accept this product’ or ‘I support this work.’
Possible narrow ruling: That Phillips’ religious beliefs might be implicated whenever he creates a custom-design cake for a couple (rather than when he sells them a cake with an existing design).
Attorney for the baker: Kristen Waggoner is head of the legal team of the Alliance Defending Freedom, an organization that has devoted much of its time and resources to challenging laws that prohibit sexual orientation discrimination. She is a graduate of television evangelical Pat Robertson’s Regent University School of Law.
Attorney for the U.S.: The Trump administration has taken sides with the baker. It is sending Solicitor General Noel Francisco to argue their point. Francisco took office in mid-September of this year. A graduate of the University of Chicago Law School, he clerked for Justice Antonin Scalia. He was an associate counsel to President George W. Bush and served in that administration’s Department of Justice.
Attorney for Colorado: Colorado Solicitor General Frederick Yarger will defend the state’s law before the Supreme Court. Yarger has held his post for two years. He clerked for Timothy Tymkovich of the United States Court of Appeals for the Tenth Circuit and has argued two other cases before the Supreme Court, both in 2016.
Attorney for the gay couple: Representing the gay couple will be ACLU national legal director David Cole, a long-time advocate for equal protection of the law for LGBT people and people with HIV.
Historic note: In 1996, the U.S. Supreme Court struck down a voter-approved law in Colorado that sought to exempt everyone from local ordinances that prohibited discrimination based on sexual orientation. (Romer v. Evans)
Postscript: The Supreme Court will discuss in conference Dec. 1, a public accommodations case involving anti-LGBT sentiment in another business transaction. Arlene’s Flowers v. Washington involves a florist who did not want to sell flowers for the wedding of a same-sex couple. Like the baker in Colorado, the florist in Washington State lost at the state supreme court and filed an appeal to the U.S. Supreme Court, a week before the Colorado case. Chances are the court will “re-list” the case for a conference taking place after the oral argument in Masterpiece and decide its fate based on the majority view in Masterpiece. But they will not likely tip their hand on Arlene’s Flowers until they release their ruling on Masterpiece Cake -which could be as late as June of next year.