Last Monday, the Supreme Court agreed to hear the appeal of a Colorado baker who holds that his refusal to make a same-sex wedding cake was not discrimination, but rather an expression of his freedom of speech.
The case centers around a 2012 encounter between baker Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colorado, and couple David Mullins and Charlie Craig. Because same-sex marriage was not yet legal in Colorado, Mullins and Craig were planning to marry in Massachusetts but to celebrate the union in Colorado. When they asked Phillips of Masterpiece Cakeshop to bake a cake for the event, however, Phillips refused on the grounds that his religious beliefs prohibited him from “celebrating” same-sex unions.
Colorado civil rights laws disallow “discriminatory practices in places of public accommodation” on the basis of sexual orientation. Such practices include “denial of service, terms and conditions, unequal treatment, [and] failure to accommodate.” When Mullins and Craig were denied service from Masterpiece Cakeshop, they filed complaints with the Colorado Civil Rights Division (CCRD) asserting that Phillips was in clear conflict with state nondiscrimination law. The CCRD found that Phillips had illegally discriminated against the couple. That finding has been upheld unanimously by the Colorado Office of Administrative Courts and, again, by the CCRD, in a public hearing upon appeal.
The Supreme Court decided last week to take up the case after deliberating through at least twelve private conferences. In years past, the court has refused to hear similar cases—including that of a New Mexico photography studio that refused a lesbian couple service, saying they only worked “traditional weddings.” Now, with conservative nonprofit Alliance Defending Freedom representing Phillips and the American Civil Liberties Union representing Mullins and Craig, the proceeding is shaping up to be a landmark case regarding whether businesses owners can take religious exception to nondiscrimination laws.
Phillips told The New York Times that same-sex weddings are not the only events his business turns down.
“We don’t do Halloween cakes, we don’t do adult-themed cakes. We’ve actually turned down…that may have been the fifth or sixth same-sex wedding cake,” Phillips said. “For the most part, they all just said, ‘Oh, OK,’ and went somewhere else.”
Phillips’s lawyers suggest that Phillips is caught in a predicament of choosing between his conscience and his livelihood. “Either use your talents to create expression that conflicts with your religious beliefs about marriage, or suffer punishment under Colorado’s public accommodation law,” they wrote in a petition to the court. Since the CCRD’s initial ruling, Phillips has discontinued the sale of any wedding cakes, which Phillips says has been a “crushing” revenue loss.
For Mullins, Craig, and their supporters, the case is “about more than just a cake.” Instead, they say, the case puts in question whether business owners can violate state or national nondiscrimination laws, jeopardizing marginalized groups’ access to goods and services ranging from wedding cakes to housing to employment. Laura Durso of the Center for American Progress told NPR that Phillips’s choice is simple. “Open a business to serve the public?” Durso said. “You have an obligation to serve everyone.”
Colorado is one of only 21 states that have “public accommodations” laws that include sexual orientation as a protected class alongside race, disability, creed, and sex. In the majority of U.S. states, there is no legal protection for gays and lesbians against sexual orientation-based discrimination in housing, employment, and access to goods and services.
The Supreme Court is slated to hear the case next fall.
--by Caroline Matas
Image Source: Wedding cake toppers. Photo by Davidlud, CC BY-SA 3.0, Wikimedia Commons.