New York Times

Masterpiece Cakeshop Readys to Go into the Court's Oven

December 5, 2017

by Adam Liptak

WASHINGTON — The Supreme Court will hear arguments on Tuesday on whether a Colorado baker was entitled to refuse to make a wedding cake for a gay couple. The case, which pits claims of religious freedom against the fight for gay rights, has attracted extraordinary public attention and about 100 friend-of-the-court briefs.

The baker, Jack Phillips, says that he should not be forced to use his talents to convey a message of support for same-sex marriage. The couple, Charlie Craig and David Mullins, say that businesses open to the public should not be allowed to discriminate against gay men and lesbians.

The case is a sort of sequel to the court’s 2015 decision establishing a constitutional right to same-sex marriage.

Gay rights groups say that allowing businesses to refuse to provide services for same-sex weddings would undermine the decision’s promise of equality. The owners of some businesses that run on religious principles say they should not be made to choose between the demands of their consciences and their ability to make a living.

Around the nation, businesses like bakeries, flower shops and photography studios have argued, so far with very little success, that forcing them to serve gay couples seeking to celebrate their unions violates the constitutional right to free speech.

The Colorado case arose from a brief encounter in 2012, when Mr. Mullins and Mr. Craig visited Mr. Phillips’s bakery, Masterpiece Cakeshop, in Lakewood, Colo. The couple were looking for a wedding cake, and Mr. Phillips turned them down.

“I’ll make you birthday cakes, shower cakes, cookies, brownies,” Mr. Phillips recalled saying. “I just can’t make a cake for a same-sex wedding.”

Mr. Mullins remembered being stunned. “We were mortified and just felt degraded,” he said. The couple filed discrimination charges, and they won before a civil rights commission and in the courts.

Mr. Phillips, who calls himself a cake artist, argued that two parts of the First Amendment — its protections for free speech and the free exercise of religion — overrode a Colorado antidiscrimination law and allowed him to refuse to create a custom wedding cake. But he has focused most of his argument on his free speech claim, relying on Supreme Court decisions forbidding the government from compelling people to say things they do not believe.

In 2015, a Colorado appeals court ruled against Mr. Phillips, saying that his free speech rights had not been violated and noting that the couple had not discussed the cake’s design before Mr. Phillips turned them down. The court added that people seeing a cake created by Mr. Phillips would not understand him to be making a statement and that he remained free to say what he liked about same-sex marriage in other settings.

“Masterpiece does not convey a message supporting same-sex marriages merely by abiding by the law and serving its customers equally,” the court said.

The Alliance Defending Freedom, a conservative Christian group that represents Mr. Phillips, said in a brief that the Supreme Court has long recognized a First Amendment right not to be forced to speak. In 1977, for instance, the court ruled that New Hampshire could not require people to display license plates bearing the state’s motto, “Live Free or Die.”

The American Civil Liberties Union, which represents the couple, has argued that a ruling for Mr. Phillips would create a broad mandate for discrimination. If a baker has a free speech right to discriminate, the A.C.L.U. said, then so do all business owners who may be said to engage in expression, including florists, photographers, tailors, choreographers, hair stylists, restaurateurs, jewelers, architects and lawyers.

The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111, is likely to turn on the vote of Justice Anthony M. Kennedy, who is at once the court’s most prominent defender of gay rights and its most committed supporter of free speech.

His majority opinion in Obergefell v. Hodges, the 2015 decision establishing a constitutional right to same-sex marriage, seemed to anticipate clashes like the one from Colorado. Justice Kennedy called for “an open and searching debate” between those who opposed same-sex marriage on religious grounds and those who considered such unions “proper or indeed essential.”