Blog Post

Justices Appear Torn on Colorado Baker’s Case

Oral arguments took place yesterday at the U.S. Supreme Court concerning the right of a baker to refuse to bake a cake for a same-sex wedding. Court watchers found it difficult to discern which way the court might rule on what could be a landmark case for either LGBT rights or religious freedom. is reporting on the arguments which consisted of 90 minutes of very spirited oral arguments in which the justices appeared to be sharply divided along ideological lines about whether or not a commercial baker could refuse to bake a wedding cake for a same-sex couple because of his religious beliefs.

The case revolved around a same-sex couple named Charlie Craig and David Mullins of Denver who wanted to buy a custom-made wedding cake from Masterpiece Cakeshop in July of 2012. Owner Jack Phillips refused to bake the cake, citing his religious beliefs.

Phillips considers what he does to be an “art” and did not feel as if he should be compelled to use his talents to promote a practice that is violates his conscience.

The couple filed a formal complaint with the Colorado Civil Rights Commission which resulted in Phillips being sanctioned by the state. The shop was ordered to change its policy and start participating in gay weddings or face debilitating fines.

“ . . . [I]t was told to provide comprehensive staff training, ensure compliance, then file quarterly obedience reports with the government for two full years. In these reports, Phillips was to describe exactly which remedial measures the shop had taken to conform, and document the reasons any other patrons were denied service,” this article in the Federalist describes.

As is their usual practice, activists in the LGBT community did everything in their power to put Masterpiece out of business, but the local Christian community rallied and kept the shop alive as Phillips began to pursue legal options that landed him on the doorstep of the U.S. Supreme Court.

His case involves serious legal questions over compelled speech, expressive content, and societal tolerance, and the Justices came down equally hard on lawyers for each side.

Justice Anthony Kennedy, who is considered to be the swing voter, issued one of the most striking comments of the day when he criticized the state for their intolerant treatment of Phillips.

"Tolerance is essential in a free society. 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."

But he also told the lawyer for Phillips: "If you prevail, could the baker put a sign in his window, we do not bake cakes for gay weddings? And you would not think that an affront to the gay community?"

Justice Sonia Sotomayor, who sits on the liberal side of the court, also weighed in: "If you want to be a part of our community, of our civic community, there's certain behavior, conduct you can't engage in,. And that includes not selling products that you sell to everyone else to people simply because of either their race, religion, national origin, gender, and in this case sexual orientation. So we can't legislate civility and rudeness, but we can and have permitted it as a compelling state interest legislating behavior."

"One thing that's disturbing about the record here," said Justice Samuel Alito about the commission's decisions, "is what appears to be a practice of discriminatory treatment based on viewpoint."

Justice Samuel Alito, Jr. had a different view. As the New York Times reports, he saw an odd feature in the Colorado case. When Phillips turned down the couple, same-sex marriage was not yet legal in the state. The couple planned to marry in Massachusetts and have their reception at home in Colorado.

“So if Craig and Mullins had gone to a state office and said we want a marriage license, they would not have been accommodated,” Justice Alito said. “And yet when he goes to this bake shop and he says I want a wedding cake, and the baker says, ‘No, I won’t do it,’ in part because same-sex marriage was not allowed in Colorado at the time, he’s created a grave wrong,” Justice Alito said. “How does that all that fit together?”

Even though same-sex marriage is now legal in the U.S., Chief Justice John G. Roberts Jr. said the court’s 2015 decision anticipated good-faith disagreements over gay unions.

“It went out of its way to talk about the decent and honorable people who may have opposing views,” Chief Justice Roberts reminded.

Court watchers are baffled as to which way the Court might rule.

After the arguments, Phillips, who is being represented by Alliance Defending Freedom, a conservative Christian nonprofit, admitted that this protracted legal fight brought “many difficult days.”

"We've faced death threats and harassment, I have had to stop creating the wedding art that I loved, which means we lost much of our business. It's hard to believe that the government is forcing me to choose between providing for my employees and violating my relationship with God. That is not freedom, that is not tolerance."

A ruling is expected by June 2018.

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