Big First Amendment Case Heads to SCOTUS Next Week

Both sides argue the outcome will have major implications — but they disagree on what those will be.

Jack Phillips decorates a cake in his shop.

By Liberty McArtor Published on November 30, 2017

The U.S. Supreme Court will hear oral arguments Tuesday in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The high-profile case deals with First Amendment rights and same-sex marriage.

Defendants say the case will decide whether the government can compel speech that violates one’s conscience. Plaintiffs say it’s about whether businesses can discriminate.

Backstory

Phillips owns Masterpiece Cakeshop in Denver, Colorado. He is a faithful Christian, and an artist.

“When I started Masterpiece Cakeshop, I wanted to have a really good cake,” Phillips says in a video. Alliance Defending Freedom (ADF) represents Phillips and created the video. “But I wanted to be known for the artwork.” 

In 2012, gay couple David Mullins and Charlie Craig asked Phillips to create a cake for their wedding. Phillips declined. His daughter Lisa explained, “It’s not about refusing business. It’s about having the freedom for him to artistically create something that allows him to honor Christ.”

“I’ll sell you cookies, birthday cakes, whatever else I’ve got,” Phillips recalled telling Mullins and Craig. “But I just can’t make this one.” 

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In ADF’s video, attorney Kristen Waggoner notes that Phillips has declined other cake requests in the past. “He has declined to participate in Halloween,” she said. “He doesn’t do cakes that are anti-American. Jack has even declined cakes to celebrate divorce. He has declined to do cakes that would be offensive or derogatory towards individuals.” She added that includes LGBT individuals.

To the Courts

Craig and Mullins reported Phillips to the Colorado Civil Rights Commission. They complained he violated the state’s Anti-Discrimination Act, refusing their business because they were gay. The Commission ordered Phillips to:

  1. Create wedding cakes for same-sex unions.
  2. Tell his staff to do the same.
  3. Turn quarterly reports over to the government for two years, detailing the requests he turned down and why.

Because of this, Phillips cannot create wedding cakes. It’s cost him 40 percent of his business, according to ADF. His staff dropped from 10 people to four.

Since then, the case has worked its way through the judicial system. After the Colorado Court of Appeals sided with Craig and Mullins, ADF appealed to the Supreme Court. 

LGBT Rights at Stake?

In a media call Wednesday, the American Civil Liberties Union claimed Phillips was asking for the right to discriminate. ACLU represents Craig and Mullins. Ria Mar, ACLU staff attorney, argued a decision for Phillips would have “staggering” implications. She said it could lead to a baker refusing to make a cake for an interracial couple. Or a florist refusing a widower’s request for an arrangement for his husband’s funeral. 

Jim Obergefell, plaintiff in the Supreme Court case which legalized same-sex marriage in 2015, joined the call. “This isn’t about creativity,” he said. Of Craig and Mullins, “they were denied service for being gay. They were denied service for who they are.” 

“You can support same-sex marriage, and support Jack Phillips and Masterpiece Cakeshop,” Waggoner said in a video.

During the call, Mullins said he and Craig “were mortified and humiliated” when Phillips denied their request. Craig said they still fear getting denied service when they enter businesses.

Ineke Mushovic is the executive director of the Movement Advancement Project and Open to All Campaign. She implied that Phillips and his supporters are the “far right.” 

“If we lose, the far right’s going to gain a constitutional right to discriminate,” she said. She warned giving Phillips the right not to bake the cake would “chip away at the foundations of our nondiscrimination laws.”

The First Amendment Question

But Phillips’ attorneys insist they are not seeking a license to discriminate. “You can support same-sex marriage, and support Jack Phillips and Masterpiece Cakeshop,” Waggoner said in the ADF’s video. 

On Tuesday Sean Duffy, a Colorado public affairs consultant, argued that exact point in Townhall. A Republican, Duffy ruffled feathers when he supported “basic legal rights to the LGBT community” years ago. The couple weren’t “denied service solely because they were gay.” He points to the fact that Phillips declines requests for many events and messages. ADF’s petition to the Supreme Court listed them in full: 

Cakes with offensive written messages and cakes celebrating events or ideas that violate his beliefs, including cakes celebrating Halloween (a decision that costs him significant revenue), anti-American or antifamily themes, atheism, racism, or indecency. He also will not create cakes with hateful, vulgar, or profane messages, or sell any products containing alcohol.

In the intro to ADF’s brief filed last week, attorneys contend they are asking for a narrow ruling. Phillips wants only “a narrow decision forbidding the government from coercing artistic expression contrary to conscience.” That

strikes a sound constitutional balance. It ensures that public-accommodation laws will forbid businesses from discriminating against people solely because of who they are, while affirming Phillips’s freedom to choose the ideas deserving of expression. The First Amendment promises him this basic liberty.

 

You can read about ADF’s arguments here. For the ACLU’s, see here.

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  • >> Plaintiffs say it’s about whether businesses can discriminate.

    The assertion that businesses cannot discriminate is asinine. Businesses discriminate all of the time.
    – No shirt, No shoes, No service!
    – Not all automobile fueling stations sell propane, yet I grew up in a family with a car that ran on propane.
    – Gandolfo’s Deli, just up the road from me does not sell steaks. Neither do they sell Chinese food. They don’t sell pasta. They sell deli sandwiches.
    – Some upscale restaurants require a tie. Maybe I don’t want to wear a tie!!
    – Years ago, I was denied entrance to a nightclub because of a specific emblem on my shirt.
    – My engineering firm is geared heavily toward oil and natural gas refining. If someone asked us to engineer a road or a bridge, no … that’s not what we do.
    – I could never drive for Uber or Lyft because my car does not meet their “discriminating” standards.

    Shall I continue? I could add to this list for the next two hours. Businesses REGULARLY discriminate. It is how we stay in business.

    • Ken Abbott

      Clearly tie-despisers are not a protected class.

  • tether

    This is not about refusing business to someone because of the person. It is about refusing to perform a service for an event that is , in contrast with one’s beliefs. The government should not be allowed to coerce someone into violating their beliefs. The cake shop owner clearly explained that they would do commerce with these people for any event they did not violate his personal beliefs.

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