• Marissa Pawlinski (student

Wedding Cakes and Equality - an Optimistic US Perspective (a student blog)

Arguably one of the most important United States Supreme Court cases of this current term is Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission​, in which a wedding cake maker argues that his religious beliefs allow him to deny making a custom wedding cake for a same sex wedding. Jack Phillips, the wedding cake maker and petitioner, argues that making a cake for a same sex wedding “runs counter to his religious beliefs” and “violates his right to free speech under the First Amendment” (Kennedy, 2017). However, the respondents, David Mullins and Charlie Craig, have a much stronger argument and higher chance of winning this case in the Supreme Court because ruling the opposite way could lead to waves of discrimination against gay people (Kennedy, 2017) and the Justices on the Supreme Court have a recent record of siding with same sex rights (Liptak, 2017).

Jack Phillips, as the owner of Masterpiece Cakeshop, claims that he should be able to refuse service to customers if making his cakes, which he claims is his art, for that customer would violate his closely held religious beliefs and infringe on his First Amendment rights.

More specifically, Phillips’ First Amendment rights to free speech, and interestingly not his First Amendment rights to freedom of religion (Liptak, 2017). This is because in the past, the Supreme Court “has ruled that the government may not compel people to convey messages that they do not believe” (Liptak, 2017). By Phillips’ legal counsel framing the argument and protected rights in a freedom of speech context, they create a better chance for Phillips to win this case since ruling in their favor could feasibly be aligned with past Supreme Court precedent. Phillips also claims that his cakes are pieces of art that display his artistic talent and that forcing him to “to use the talents that I have to create an artistic expression that violates that faith” (Phillips, 2017) is wholly unconstitutional (Liptak, 2017). There is Constitutional merit to Phillips position and First Amendment issues, especially when the Court could set a precedent of forcing business owners to violate their freedom of speech. However, when compared to the possibility of widespread discrimination against a whole class of people, it seems likely that Phillips’ position will be viewed by the Justices as a lesser of two evils.

David Mullins and Charlie Craig, under the Colorado Civil Rights Commission, have argued that Phillips’ refusal to make them a wedding cake, because of their sexual orientation, amounted to discrimination. They claim that because “long-standing state law prohibits public accommodations… from refusing service on classes such as race, sex, marital status or sexual orientation” (Craig, 2014), Phillips was subject to that law and therefore violated it with his refusal. Mullins and Craig have been met with support from the LGBTQ community and many Congresspeople, with both groups voicing opinions in favor of their position. Sen. Tammy Baldwin (D-WI) led the Congressional amicus brief in favor of Mullins and Craig, stating that “our religious beliefs don’t entitle any of us to discriminate against others” and that no “American should face discrimination based on… sexual orientation” (Baldwin, 2017).

The LGBTQ community was disappointed that the Trump administration sided in opposition to Mullins and Craig by filing an amicus brief in support of Phillips position (Johnson, 2017). By these two powerful communities voicing their opinion, the Justices have a better understanding of who supports the possible effects from a ruling in favor of Mullins and Craig.

Even though both Petitioner and Respondent in ​Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission​ have strong cases, the negative implications that could result from ruling in Phillips’ favor are much more severe and could infringe on a whole subset of already disadvantaged peoples' rights. Besides the fact that sexual orientation should be treated legally as an unchangeable and immutable characteristic (the same as sex, race, etc.), accepting Phillips’ argument could allow “all sorts of artists, artisans and professionals to refuse to provide goods and services for same-sex” couples (Justice Kennedy, 2017; Liptak, 2017).

Other Supreme Court, LGBTQ rights, and First Amendment scholars and lawyers have mulled over the question of whether siding with Phillips leads to a slippery slope situation, and whether its likely that the Court will consider the possibility of that situation as well.

Some lawyers, such as Floyd Abrams, have asked this very important question: if the Supreme Court allows a wedding cake baker to deny service to certain individuals based on the baker’s protected freedom of speech, then who is to say that other businesses who sell artistic items won’t be able to discriminate based upon ethnicity, or other unchangeable characteristics, just because they claim it would violate their freedom of speech (Liptak, 2017)? It seems that the Supreme Court ruling in favor of Phillips would create a slew of further questions and problems in terms of the precedent it would set.

The Supreme Court has set a precedent of siding with gay rights after the ​Obergefell v. Hodges​ case, which legalized same sex marriage. Supreme Court Justice Anthony Kennedy, the current tie vote on the Court, also has a record of being a defender of gay rights and may seek to foster that reputation and continue his legacy. The ​Obergefell​ decision legalized same-sex marriage in 2015, but Kennedy’s majority opinion “seemed to anticipate clashes” like the Masterpiece Cakeshop​ case (Liptak, 2017). Kennedy, in that opinion, called for “an open and searching debate” (Kennedy, 2015) so that the issues between gay rights and religious beliefs could be resolved (Liptak, 2017). The importance of Anthony Kennedy’s opinion and vote on the outcome of ​Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission​ cannot be stressed enough. According to CNN, Kennedy has “taken the lead in every gay rights decision since 1996” and his opinions tent to focus on the “individual dignity” of gay people (Biskupic, 2017).

However, based off of Kennedy’s questions during oral arguments for ​Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission​, the Justice may be at a crossroads. The New York Times states that, “he is at once the court’s most prominent defender of gay rights and its most committed supporter of free speech” (Liptak, 2017) and CNN stated that he “would be looking for a way to avoid a sweeping ruling that allows businesses to refuse services for gay people based on religion” (Biskupic, 2017). Although Kennedy likely wants to protect First Amendment rights, his position in ​Obergefell v. Hodges​, makes it possible that he will further defend gay rights and cast the deciding vote in favor of David Mullins and Charlie Craig.

The intersection of First Amendment freedom of speech rights and anti-discrimination policy in ​Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission​ makes for an interesting discussion on Supreme Court precedent and individual Justices' viewpoints. Justice Kennedy, most likely the deciding vote, is no doubt concerned with precedent and his legacy in terms his past decisions in gay rights-related cases (Biskupic, 2017). For those reasons, it is a credible possibility that we should optimistically await for the Court to rule in favor of David Mullins, Charlie Craig, and gay rights.

Works Cited

Biskupic, Joan. (2017, December 5). Anthony Kennedy legacy again at play in same-sex marriage case. ​CNN​. Retrieved from http://www.cnn.com/2017/12/05/politics/anthony-kennedy-supreme-court-same-sex-marriage-religious-liberty/index.html

Craig, Charlie. (2014, May 29). In Colorado, Freedom Should Mean Freedom for Everyone. American Civil Liberties Union​. Retrieved from https://www.aclu.org/blog/speakeasy/colorado-freedom-should-mean-freedom-everyone

Johnson, Carrie. (2017, September 8). LGBT Advocates: Trump Administration's Stance In Cake Case Is Yet Another Letdown. ​National Public Radio​. Retrieved from https://www.npr.org/2017/09/08/549453484/lgbt-advocates-trump-administration-s-stance-in-cake-case-is-yet-another-letdown

Kennedy, Merrit. (2017, June 26). High Court To Hear Case Of Cake Shop That Refused To Bake For Same-Sex Wedding. ​National Public Radio​. Retrieved from https://www.npr.org/sections/thetwo-way/2017/06/26/534417186/high-court-to-hear-case-of-cake-shop-that-refused-to-bake-for-same-sex-wedding

Liptak, Adam. (2017, December 5). Justices Sharply Divided in Gay Rights Case. ​The New York Times​. Retrieved from https://www.nytimes.com/2017/12/05/us/politics/supreme-court-same-sex-marriage-cake.html

Liptak, Adam. (2017, September 16). Cake Is His ‘Art.’ So Can He Deny One to a Gay Couple? The New York Times​. Retrieved from https://www.nytimes.com/2017/09/16/us/supreme-court-baker-same-sex-marriage.html