A Colorado baker’s right to express himself through artwork – edible artwork– lies at the center of today’s Supreme Court arguments, say lawyers for Masterpiece Cakeshop owner, Jack Phillips.
“The right of all creative professionals to speak and to live consistent with their beliefs is at stake,” Alliance Defending Freedom Senior Counsel Kristen Waggoner, who represented Phillips before the Supreme Court, told CNA.
The Court heard arguments today in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case which has garnered attention from LGBT-rights advocates and religious liberty proponents.
Waggoner said that the justices asked difficult questions of both sides, and explained that she and US Solicitor General Noel Francisco argued before the high court that forcing Phillips to “sketch, sculpt and to handpaint a message” about marriage that is contrary to his faith violates the Constitution’s protections for free speech.
“Whether you support same-sex marriage or you oppose it, you should be able to have the right to speak freely; to hold beliefs and to speak freely in the public square,” she said.
The case comes after five years of litigation involving Phillips and his Lakewood Colo. bakery, Masterpiece Cakeshop, which he opened in 1993. In 2012, Phillips found himself faced with a lawsuit filed by Charlie Craig of Colorado, after he declined to make a wedding cake for the same-sex wedding of Craig and David Mullins. Phillips offered to create another cake for the couple. The Colorado Civil Rights Commission, a state agency that represent Craig and Mullins during litigation, claimed that by declining to make the cake, the baker had violated the state’s anti-discrimination law.
The lawsuit was decided in favor of the plaintiffs in 2013, and a Colorado judge ordered Phillips to receive anti-discrimination training and to serve same-sex weddings or stop serving weddings altogether.
Phillips lost appeals at the state level, and the Colorado Supreme Court declined to take the case. In June, 2017, the U.S. Supreme Court agreed to hear the case.
The couple was able to obtain a rainbow-themed cake from a bakery near Phillips’ cake shop.
Phillips declines to bake other kinds of cakes that promote ideas at odds with his beliefs, such as cakes that portray anti-American, atheist, or racist messages or disparage members of the LGBT community. Phillips also declines to create custom cakes for other events he is uncomfortable supporting, such as Halloween and bachelor parties. “Though I serve everyone who comes into my shop, like many other creative professionals, I don’t create custom designs for events or messages that conflict with my conscience,” Phillips explained in a Dec. 5 press conference outside of the Supreme Court.
Since the litigation started, Phillips has said that he has lost over 40 percent of his business due to his inability to serve any weddings. As a result, he has lost nearly half of his employees, and now struggles “to pay our bills and keep the shop afloat.” In addition, Phillips has reported receiving “death threats” which resulted in police being called to the scene.
“It’s hard to believe that the government is forcing me to choose between providing for my family and employees and violating my relationship with God,” Phillips said. “That is not freedom. That is not tolerance.”
The ACLU argued before the Supreme Court, along with the Colorado Civil Rights Commission, against Phillips. In statement released today, the advocacy group said that Phillips’ First Amendment rights do not allow his bakery to “choose their customers.”
“These laws ensure that everyone, including gay people, have the freedom to walk into a business and know that they will be treated the same way,” stated David Cole, legal director of the ACLU, who argued before the Supreme Court. “As we argued in court today, the justices have an obligation to defend the principle of equal dignity under the law for all Americans — including Dave and Charlie.”
The United States Conference of Catholic Bishops, who filed a friend-of-the-court brief on behalf of Phillips, voiced their support for free expression and freedom of religion.
“We pray that the Court will continue to preserve the ability of people to live out their faith in daily life, regardless of their occupation,” said Archbishops Joseph E. Kurtz of Louisville and Charles J. Chaput, O.F.M. Cap., of Philadelphia and Bishop James D. Conley of Lincoln in a joint statement. The bishops chair the U.S. Bishops’ Committees on Religious Liberty; Committee on Laity, Marriage, Family Life and Youth; and the Subcommittee for the Promotion and Defense of Marriage, respectively.
“Artists in particular deserve to have the freedom to express ideas—or to decline to create certain messages—in accordance with their deeply held beliefs, the bishops wrote.
Citing Justice Anthony Kennedy’s decision in the Obergefell v. Hodges case, which noted that people can oppose same-sex marriage for “decent and honorable religious or philosophical premises,” the bishops asked that creative professionals be allowed to “use their artistic talents in line with these decent and honorable convictions.”
Religious freedom experts also highlighted the importance of free speech and religious freedom protections. Eric Baxter, Senior Counsel at the Becket Fund for Religious Liberty, who also filed a friend-of-the court brief on behalf of Masterpiece, pointed to the religious importance that weddings have carried for centuries.
“The idea that the government can force someone to participate in events like weddings, baptisms, bar mitzvahs, or even funerals—events that are so full of cultural and religious meaning—is deeply troubling,” he said in a statement.
“Of course creating a custom wedding cake is part and parcel of celebrating a wedding. Jack Phillips should not be forced to do that any more than someone should be forced to sing at a wedding, or serve as a wedding witness, or attend the wedding with a sufficiently large smile on their face,” Baxter continued.
“As a nation, we can live and let live without taking extreme offense at others’ choices or forcing them to participate in our own.”
The Supreme Court will likely deliver its decision in late spring or early summer 2018.