Gay Wedding Cake Case: Free Speech or Discrimination?

The government cannot commandeer the painter's brush or the sculptor's hand, lawyers for the Colorado bakery argue

by Brendan Kirby | Updated 06 Dec 2017 at 12:28 PM

A closely watched case involving a baker who refused to make a wedding cake for a gay couple heads to the Supreme Court on Tuesday, with oral arguments that could focus on free speech.

The lawsuit challenges a judgment imposed on Jack Phillips and his business, Masterpiece Cakeshop, by the Colorado Civil Rights Commission. Phillips’ lawyers compare the creation of a wedding cake to the work of photographers, filmmakers, painters and other artists.

"Expressive freedom is central to human dignity. It requires that artists be free to make their own moral judgments about what to express through their works," the lawyers wrote. "And it forbids governments from commandeering the painter's brush, the sculptor's hand, or the soloist's voice to convey what is not in their minds or hearts."

Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, said it is an important test of whether the government can force someone to engage in artistic expression against his moral values.

"It's part of a series of very important First Amendment compelled-speech cases that the court is looking at," she said. "This court has a very strong First Amendment record."

The case is one of the biggest cases of the Supreme Court's current term. The high court will devote the customary one-hour block to oral arguments. In addition to the lawyers for the plaintiff and the commission, the solicitor general's office will get time to express the government's view: President Donald Trump's administration has weighed in on the side of the baker.

The Colorado Civil Rights Commission pursued a case against Masterpiece Cakeshop after Charlie Craig and David Mullins filed a complaint in 2012 — before gay marriage was legal in the state. The commission determined that Phillips had discriminated against the couple by refusing to make a custom wedding cake.

Attorneys for the Colorado Civil Rights Commission concede that the government cannot force people to speak. But they argue the case is nothing like a school punishing children for refusing to say the pledge of allegiance or forcing a newspaper to print a politician's opinion piece. Instead, they wrote, it is a "public accommodations" case — the right of anyone to be served by a business that is open to the public.

"If a retail bakery will offer a white, three-tiered cake to one customer, it has no constitutional right to refuse to sell the same cake to the next customer because he happens to be African-American, Jewish, or gay," the lawyers wrote.

"This is about principles that are foundational to our country."

The case has drawn friend-of-the-court briefs from a host of organizations, including the Foundation for Moral Law, founded by Alabama Republican Senate candidate Roy Moore. The former chief justice of the state Supreme Court has made a number of controversial comments about homosexuality over the years.

The Radiance Foundation will hold a rally outside the Supreme Court building on Tuesday. Representatives from the Family Research Council, which also filed written arguments in support of the bakery, will attend.

"As Americans, our consensus on religious freedom has historically recognized the God-given right of Americans to live all aspects of their lives according to their faith," Family Research Council President Tony Perkins said in a prepared statement. "This is no different today. Attempting to restrict religious conviction to the four walls of a church is not freedom, that is tyranny."

For all the debate over religious freedom, though, much of the legal agreement has focused on free speech. Severino, whose organization advocates for the appointment of conservatives as judges, told LifeZette that it will be up to the justices to decide where to take oral arguments.

The parties have discussed both free speech and freedom of religion, Severino noted. She said both rights are closely related.

"This is about principles that are foundational to our country," he said. "It's got both elements [religious freedom and free speech] in it … They are clearly linked. It's why both are in the First Amendment."

How the justices decide could be nearly as important as the result, according to experts. Severino said a ruling based on compelled-speech grounds may not apply to other vendors who object to same-sex marriage, such as someone who rents a venue.

Emilie Kao, director of the Richard and Helen DeVos Center for Religion & Civil Society at The Heritage Foundation, said free speech and religious freedom are "very intertwined." She said she hopes the justices affirm Phillips' rights on both fronts.

"That would be our ideal outcome," she said. "I think the court has ample reason to protect both."

Kao disputed the argument that the case is about public accommodations. She said Phillips has never refused to serve customers based on sexual orientation or for any other reason when they walk into the bakery.

Related: Wedding Cake and Religious Liberty: Big Week Ahead

Kao said it is fundamentally different to force Phillips to create a specific cake expressing a celebration of a wedding that he considers immoral. She said it is similar to a unanimous Supreme Court ruling in 1995 that organizers of the St. Patrick's Day parade in Boston had the right to exclude an LGBT group.

Kao said the Colorado Civil Rights Commission itself has ruled that a black baker could not be compelled to make a cake for the Aryan Nation, and a Muslim cake artist could not be forced to bake a cake denigrating the Quran.

"Jack, rightfully, says, 'Apply that standard to me,'" she said.

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