WASHINGTON — The U.S. Supreme Court heard oral argument on Tuesday regarding whether or not a Christian baker in Colorado has the right to decline to make cakes for same-sex celebrations due to his religious convictions.
The nine justices naturally were divided over Masterpiece Cakeshop v. Colorado Civil Rights Commission, with the more liberal judges expressing care not to disturb civil right laws and the more conservative judges appearing concerned about the infringement of religious liberty.
According to reports, Justice Anthony Kennedy seemed to be the man in the middle. While he posed a question asking if it could be “an affront to the gay community” if a sign were put in the window advising that a business does not service certain events, he also stated that Colorado has been “neither tolerant nor respectful” to the baker, and is guilty of “hostility to religion.”
“Tolerance is essential in a free society,” Kennedy said, according to Fox News. “And tolerance is most meaningful when it’s mutual.”
Justice Neil Gorsuch also expressed concern that the baker had been ordered to retrain his staff in accordance with state non-discrimination laws, suggesting that it could send the message that Christianity is discriminatory.
“[He would] have to teach that state law supersedes our religious beliefs,” Kennedy also remarked, according to SCOTUSBlog.
Justice Samuel Alito additionally noted that it is “odd” that at the time the men requested the cake, same-sex “marriage” was not legal in Colorado, yet Masterpiece Cakeshop could still be punished over the matter.
Alliance Defending Freedom (ADF) Attorney Kristen Waggoner was questioned by Justice Elena Kagan, who seemed to be more skeptical of the argument that had been presented in favor of the baker. She asked where the line would be drawn for wedding-related businesses. Could jewelers, hairdressers and makeup stylists decline to be a part of a same-sex ceremony? Waggoner argued that those cases were different because they did not involve forms of speech.
“Some people might say that about cakes,” Kagan replied.
“If you want to be a part of our community, of our civic community, there’s certain behavior, conduct you can’t engage in,” Justice Sonia Sotomayor also stated. “And that includes not selling products that you sell to everyone else to people simply because of their either race, religion, national origin, gender, and in this case sexual orientation.”
But Justice John Roberts expressed concern that organizations such as Catholic Legal Services would be forced to take a case involving same-sex “marriage” regardless of its religious beliefs. Alito likewise worried that a Jewish baker could be forced to make a cake for a German Kristallnacht celebration.
“So Catholic Legal Services, would be put to the choice of either not providing any pro bono legal services or providing those services in connection with the same-sex marriage?” Roberts asked.
U.S. Solicitor General Noel Francisco, who addressed the court on behalf of the Trump administration, suggested that the court make a narrow allowance so that business owners are not forced to take part in events that are violative of their religion.
A decision is expected in the spring.
As previously reported, the case began in 2012 when Dave Mullin and Charlie Craig visited Masterpiece Cakeshop in Lakewood, Colorado to look for options for their upcoming same-sex ceremony celebration. As Colorado—at the time—had a constitutional amendment enshrining marriage as being between a man and a woman, the men planned to travel to Massachusetts and then return to Colorado for a separate celebration.
However, after their arrival at the cake shop, Mullin and Craig were advised by owner Jack Phillips that he does not make cakes for same-sex ceremonies.
“My first comment was, ‘We’re getting married,’ and he just shut that down immediately,” Craig stated.
Phillips told Christian News Network that he does not make cakes for such events because of his Christian convictions.
“I’m a follower of Jesus Christ, and I believe that the relationship is not something that He looks favorably on,” the master pastry chef stated. “If Jesus was a carpenter, He wouldn’t make a bed for this union.”
However, Phillips says that it is not just same-sex celebrations that he declines. He also doesn’t create custom baked goods for bachelor parties or Halloween events, and remarked in a recent video that sometimes in a day he will turn down more requests than he accepts.
Phillips, who attends a Baptist church, said that when he informed Mullin and Craig that his bakery does not make cakes for same-sex “weddings,” the men immediately left. He stated that one of them made a comment on his way out the door that the bakery was a “homophobic cake shop.”
Phillips said that he told the men that he would be happy to make them any other type of baked goods outside of having to facilitate the ceremony, which he believed was a form of personal participation. But Mullin and Craig complained to the Colorado Human Rights Commission with the help of the American Civil Liberties Union (ACLU), and have prevailed in their case ever since.
In December 2013, Judge Robert Spencer sided with the ACLU, contending that Phillips should have made the cake because he was not told that there would be any words or symbols written on it.
“Phillips was not asked to apply any message or symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating same-sex marriage,” he wrote. “The act of preparing a cake is simply not ‘speech’ warranting First Amendment protection.”
In May 2014, the Colorado Civil Rights Commission upheld Spencer’s ruling, stating that Phillips violated the state’s civil rights law. The Commission then ordered that Phillips educate his staff in alignment with the Colorado Anti-Discrimination Act, to implement new policies in light of the ruling, and to file quarterly compliance reports for two years. The reports were to outline each pastry creation request that was declined and the reason why to prove that Phillips’ religious beliefs no longer influence his business decisions.
Phillips filed an appeal with the Colorado Court of Appeals, which upheld the lower court’s rulings in August 2015, asserting that providing the cake for the ceremony does not equal an endorsement of same-sex nuptials.
“Nothing in the record supports the conclusion that a reasonable observer would interpret Masterpiece’s providing a wedding cake for a same-sex couple as an endorsement of same-sex marriage rather than a reflection of its desire to conduct business in accordance with Colorado’s public accommodations law,” the court ruled.
The matter was appealed to the Colorado Supreme Court, which declined to hear the case last year. Therefore, Phillips took his case to the nation’s highest court, which agreed in June to be the arbiter of the issue.
Phillips issued a statement outside of the Supreme Court following Tuesday’s oral argument, advising that he has no issue with serving homosexuals, but he cannot partake in an event celebrating any form of sin.
“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. I don’t create cakes that celebrate Halloween, promote sexual or anti-American themes, or disparage people, including individuals who identify as LGBT,” he said. “For me, it’s never about the person making the request. It’s about the message the person wants the cake to communicate.”
“I am here at the Supreme Court today because I respectfully declined to create a custom cake that would celebrate a view of marriage in direct conflict with my faith’s core teachings on marriage. I offered to sell the two gentlemen suing me anything else in my shop or to design a cake for them for another occasion,” Phillips continued.
“For that decision, which was guided by an established set of religious beliefs, I’ve endured a five-year court battle. It’s been very hard on me and my family. There have been tears and many difficult days for us. We have faced death threats and harassment,” he said. “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. That is not freedom. That is not tolerance.”