The Supreme Court began hearing arguments Tuesday in one of the term’s most anticipated cases: whether the First Amendment protects a Colorado baker from creating a wedding cake for a same-sex couple.
An attorney for the baker who owns Masterpiece Cakeshop told the court that Jack C. Phillips should not be forced to design his custom-made cakes for same-sex couples against his deeply held religious beliefs and should be exempt from Colorado’s anti-discrimination law.
Several justices questioned what other types of business owners would be exempt if the court made an exception for Phillips.
“Who else is an artist?” asked Justice Ruth Bader Ginsburg.
What about a florist, a chef or a makeup artist, asked Justice Elena Kagan.
Phillips’s attorney, Kristen K. Waggoner, distinguished between the baker’s highly-stylized, sculpted creations and the services provided by other professions that she said were “not speech.”
“Some people might say that about cakes,” responded Kagan.
Justice Stephen G. Breyer said the court was struggling with how to draw a line when it comes to religious freedom protections. “Obviously, we want a distinction that will not undermine every single civil rights law,” he said.
The Trump administration filed a brief on behalf of Phillips; supporters of the couple said it was the first time the government has argued for an exemption to an anti-discrimination law.
But the government agreed with Phillips that his cakes are a form of expression and that he cannot be compelled to use his talents for something that he does not support.
Solicitor General Noel J. Francisco, representing the Trump administration, told the court Tuesday that the exemption should apply only to a narrow category of business owners. He repeatedly used as an analogy an African American sculptor, who he said should not be forced to create a cross that would be used for a Ku Klux Klan service.
Phillips contends that dual guarantees in the First Amendment — for free speech and for the free exercise of religion — protect him against Colorado’s public accommodations law, which requires businesses to serve customers equally regardless of “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”
Scattered across the country, florists, bakers, photographers and others have claimed that being forced to offer their wedding services to same-sex couples violates their rights. Courts have routinely turned down the business owners — as the Colorado Court of Appeals did in the Phillips, saying that state anti-discrimination laws require businesses that are open to the public to treat all potential customers equally.
There’s no dispute about what triggered the court case.
In 2012, when same-sex marriage was still prohibited in Colorado, Charlie Craig and David Mullins decided to get married in Massachusetts, where it was legal. They would return to Denver for a reception, and those helping with the plans suggested they get a cake from Masterpiece.
The couple arrived with Craig’s mother and a book of ideas, but Phillips cut short the meeting as soon as he learned the cake was to celebrate the couple’s marriage.
Phillips recalled: “Our conversation was just about 20 seconds long. ‘Sorry guys, I don’t make cakes for same-sex weddings.’”
The couple then learned that Colorado’s public accommodations law specifically prohibited discrimination based on sexual orientation, and they filed a complaint with the Colorado Civil Rights Commission. The commission ruled against Phillips, and the appeals court upheld the decision.
“Masterpiece remains free to continue espousing its religious beliefs, including its opposition to same-sex marriage,” Judge Daniel M. Taubman wrote. “However, if it wishes to operate as a public accommodation and conduct business within the State of Colorado, [the law] prohibits it from picking and choosing customers based on their sexual orientation.”
The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission.