By Kevin Daley
A majority of the U.S. Supreme Court appeared sympathetic Tuesday with a Christian baker from Colorado who declined to create a custom wedding cake for an LGBT couple.
Several justices expressed concerns about the integrity of civil rights and public accommodations laws, and the Court generally struggled with the proposition that Phillips has a speech interest in his custom cakes. But Justice Anthony Kennedy and the conservative justices expressed concern about government hostility to religious believers, signaling a potential victory for the baker.
The case was occasioned when David Mullins and Charlie Craig, a gay couple, entered Jack Phillips’ Masterpiece Cakeshop in Lakewood, Colo. After a short discussion with the prospective patrons, Phillips said he would not sell them a custom wedding cake due to his deeply-held religious beliefs. Mullins and Craig filed a complaint with the Colorado Civil Rights Commission, prompting a lengthy legal battle culminating in an appeal to the high court.
Phillips says he has sold baked goods to LGBT persons in the past, and that he would similarly sell generic baked goods — including cakes — to Mullins and Craig. He refuses, however, to create a custom cake conveying a message respecting their nuptials, and argues the state cannot compel him to create speech with which he disagrees.
During Tuesday’s argument, several justices expressed concern about the line Phillips asked them to draw. Assuming that a cake is in fact speech, Justice Elena Kagan wondered which other proprietors could also decline to provide services for a same sex wedding. Kagan used the example of a makeup artist or a hairstylist, professionals who uses a highly-specialized skill set to create beauty. Kristen Waggoner, the lawyer representing Phillips, replied that hair and makeup is not expressive.
Kagan later expressed incredulity when Waggoner said a baker creates protected expression, but a chef does not.
Attempting to extricate her from Kagan’s withering hypotheticals, Justice Samuel Alito asked if architecture could be considered speech. Waggoner said no, since architecture is primarily functional. Justice Stephen Breyer noted it would be odd indeed if a cake was considered speech, but an architectural masterpiece by Mies or Michelangelo was not.
Breyer added that a poorly-tailored free-speech exemption for religious dissenters could compromise public accommodation laws, which require businesses to treat all customers equally.
“The reason we’re asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law from the year two,” he said.
Kagan revived her line of questioned when Solicitor General Noel Francisco stood to argue on behalf of the federal government, which supports Phillips. She asked if a renown chef at a tony restaurant could refuse service to a gay couple celebrating their wedding anniversary. Like Waggoner, Francisco said a chef’s work is not protected speech, since it is generic, uncustomized product.
“So the baker is speech, but the great chef who is like ‘everything is perfect on the plate and it’s a work of art, it’s a masterpiece’ [isn’t]?” she said.
“My colleagues, I think, go to more elite restaurants than I do,” Alito quipped, to laughter.
All told, the Court struggled to navigate Phillips’ free speech argument. In something of a role reversal, Breyer appeared decidedly sympathetic to the baker’s religious convictions, while Chief Justice John Roberts and Justice Neil Gorsuch acknowledged a ruling in his favor might create chaos in civil rights law. All nine justices appeared unable to find a sufficient remedy on free speech grounds.
The Court seemed less divided over the Commission’s conduct in adjudicating the matter. Kennedy suggested that Colorado has not been tolerant of Phillips’ religious beliefs while handling this controversy. At one juncture, he asked Colorado Solicitor General Frederick Yarger to disavow statements made by commissioners during the case, which suggest hostility to orthodox religion.
One statement, which he read in part from the bench, said 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,” one commissioner said. “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.”
“Tolerance is essential in a free society,” Kennedy said. “And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
Seizing on this point, Alito claimed the Commission has not treated similarly-situated bakers equally. In a 2014 case, the Commission found that a Denver-area bakery which refused to create cakes promoting traditional marriage did not discriminate against a patron’s Christian religious beliefs. This, he said, was evidence that the Commission does not fairly enforce anti-discrimination law.
Roberts elsewhere feared that anti-discrimination laws like Colorado’s could be weaponized against religious groups. He asked Yarger if the state could force a religious pro-bono law group like Catholic Legal Services to represent a gay couple in a lawsuit relating to their wedding plans.
At the argument’s conclusion, it appeared possible that the Court will side with Phillips given the Commission’s alleged failure to enforce anti-discrimination law fairly, while avoiding a sweeping decision about the rights of religious dissenters.
The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, will be decided by June 2018.
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