The Supreme Court heard oral arguments Tuesday in the major religious freedom case of Masterpiece Cakeshop v. Colorado Civil Rights Commission which began when Colorado Christian baker Jack Phillips refused to create a wedding cake for a gay couple’s wedding because he disagrees with same-sex marriage.
Phillips is the owner of the Masterpiece Cakeshop in Denver. He informed Charlie Craig and David Mullins in 2012 that he wouldn’t make a cake for their same-sex wedding due to his religious beliefs. They complained to the Colorado Civil Rights Commission who agreed that Phillips was violating the state’s anti-discrimination law. The Supreme Court agreed to hear the case in June.
Phillips is arguing that the Colorado ruling violates the Free Speech and Free Exercise Clauses of the First Amendment. He argues that, as an artist, he cannot be forced to make a cake in opposition to his views.
The justices appeared divided on the case which pits religious freedom concerns against anti-discrimination policies. Justice Anthony Kennedy, who will likely be the crucial vote in the high court’s decision, highlighted anti-discrimination concerns but was also troubled by the Colorado Civil Rights Commission’s treatment of Philips.
At one point in the 90-minute arguments, he asked Colorado Solicitor General Frederick Yarger to disavow statements made by some on the commission that seemed hostile to religion including a statement from Commissioner Diann Rice, which Kennedy read from the bench, saying religion has been used to justify slavery and the Holocaust.
“[R]eligion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust,” she said in a 2014 commission hearing. “We can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use.”
Yarger replied that he disavowed the commissioner’s comment.
“Tolerance is essential in a free society,” Kennedy said. “It seems to me that the state in its position here has neither been tolerant nor respectful of Mr. Phillips’s religious beliefs.”
Kennedy also said that the lawyer's arguments that Phillips was discriminating against the couple based on their identity was "too facile." He suggested that the commission went too far by ordering Phillips to implement remedial training for his workers.
Despite his sympathy for Phillips’s ordeal with the commission, Kennedy also raised anti-discrimination concerns.
He asked Noel J. Francisco, a lawyer for the Trump administration, whether Phillips, could put a sign in his window that said “We don’t bake cakes for gay weddings.” Francisco replied yes, if the cakes were custom made.
Kennedy seemed troubled by this saying the position ran counter to gay couples’ dignity.
He also criticized Francisco’s attempts to narrow the range of situations in which Phillips and similar business owners had a right to refuse services.
“The problem for you is so many examples do involve speech. It basically means there is an ability to boycott,” Kennedy said.
Predictably, the liberal justices were concerned about the broader implications the case would have for discrimination by business owners against gay couples.
Justice Stephen Breyer told Francisco that he was concerned that the court might have “no way of confining” a decision in favor of Phillips.
Phillips' attorney, Kristen Waggoner with Alliance Defending Freedom, said his work was a "temporary sculpture" and argued that concerns about other businesses using a ruling in his favor to deny gay couples service were exaggerated.
"The tailor is not engaging in speech, nor is the chef," she said.
"The baker is engaged in speech, but the chef is not engaging in speech?" Justice Elena Kagan responded.
Justice Sonia Sotomayor argued that since a major sandwich chain says employees are creative "there are sandwich artists now."
“When have we ever given protection to a food?” she asked.
Justice Stephen G. Breyer said with these questions the justices were trying to get at where the line is when it comes to being able to deny service.
The conservative justices emphasized the religious freedom implications of a ruling in the commission’s favor.
Chief Justice John Roberts pressed David D. Cole, a lawyer for the couple on whether a Catholic legal services agency that provides free legal aid would be compelled to take up a case on behalf of a same-sex couple, despite their religious convictions opposing same-sex marriage.
Cole replied that they would “if they’ve provided the same services to couples who are straight.”
Roberts also emphasized that in the Supreme Court’s landmark 2015 Obergefell v. Hodges ruling legalizing same-sex marriage “the court went out of its way to talk about the decent and honorable people who have opposing views,” specifically referencing Kennedy’s majority opinion in the case.
The newest justice, Colorado native Neil Gorsuch, asked Cole whether a baker would be compelled to make cake shaped like a red cross for the Ku Klux Klan if he also made such a cake to celebrate relief efforts.
Cole replied that he would not because Colorado’s anti-discrimination law includes race, sex, and sexual orientation, but not members of the KKK.
Justice Samuel Alito pointed out that same-sex marriage was not yet legal in Colorado in 2012 so Craig and Mullins could not have even obtained a marriage license locally but the commission nevertheless decided Phillips “committed a grave wrong” when refusing to make them a cake at that time. Alito said the situation seemed unfair.
The case has been highly contentious as it made its way through the courts. The Trump Administration, the United States Conference of Catholic Bishops, the Thomas More Society, and Concerned Women for America all filed briefs supporting Phillips.
One brief, filed by professional cake artists in September, supported neither party in the case but made a compelling visual argument that the Court should make clear, no matter what it decides, that “cake artists are indeed practitioners of an expressive art and that they are entitled to the same respect under the First Amendment as artists using any other medium.”
The court must reach a decision in the case by June 2018. The decision is likely to hinge on Kennedy’s vote given that the four liberal justices seemed sympathetic to the state while the four conservative justices appeared more sympathetic to Phillips.
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