Supreme Court Hears Masterpiece Cakeshop Arguments

Arguments went longer than planned as justices took an active interest in the case.

Jack Phillips speaks to the media after leaving the Supreme Court which is hearing the 'Masterpiece Cakeshop v. Colorado Civil Rights Commission,' Tuesday, Dec. 5, 2017, in Washington.

By Liberty McArtor Published on December 5, 2017

People lined up outside the U.S. Supreme Court while it was still dark Tuesday morning — joining some who had camped out — hoping to witness oral arguments in a highly-anticipated case involving free speech, religious freedom and same-sex marriage.

Jack Phillips, the defendant in Masterpiece Cakeshop v. Colorado Civil Rights Commission, owns Masterpiece Cakeshop in Denver, Colorado. In 2012, the devout Christian declined a request to make a cake for a same-sex wedding reception. Phillips has also denied other cake requests in the past when they violate his beliefs. They include cakes that celebrate Halloween or have vulgar messages, among others.

But the couple, Charlie Craig and David Mullins, complained to the Colorado Civil Rights Commission. The commission then gave Phillips a list of orders, including that he make wedding cakes for same-sex unions. Since then, Alliance Defending Freedom (ADF) has represented Jack at every judicial level preceding the Supreme Court. The ACLU is representing Craig and Mullins.

First Impressions

“The hearing was very lively,” ADF president Michael Farris said directly after oral arguments. ADF live-streamed the press conference from the Supreme Court steps. Arguments were supposed to be an hour long. But they went longer “because there was so much interest on all sides of the case,” Farris said.

He added that Kristen Waggoner, the ADF attorney leading Phillips’ case, “did an absolutely great job.” Noel Francisco, U.S. Solicitor General, also argued Phillips’ case. The Justice Department filed an amicus brief on Phillips’ behalf. Colorado Solicitor General Frederick Yarger and ACLU attorney David Cole argued on behalf of Craig and Mullins.

“I think the court heard from four able lawyers,” Farris said. “But I believe at the end of the day we have a very good chance of prevailing in this case, but it’s going to be close.”

From The Defendant and the Plaintiffs

After the arguments, Phillips stepped up to the mic.

“I serve all who walk through my doors,” he said. “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.”

Craig and Mullins also spoke to reporters and supporters.

“I believe at the end of the day we have a very good chance of prevailing in this case, but it’s going to be close.” — Michael Farris, President of ADF

“This entire time Dave and I have just been asking to be treated equally in public,” Craig said. “We’re two regular guys that just were wronged and decided to stand up for ourselves.”

“Dave and I do not have an agenda,” he added. “We all deserve fair and equal treatment, and that’s why we’re here today.”

During arguments, supporters of both sides held rallies outside the Supreme Court. Phillips’ supporters held signs reading “justice for Jack” and “love free speech.” Craig and Mullins’ supporters held signs reading “It’s not about the cake” and “open to all.” Various religious leaders and politicians joined each rally.

Notes From the Courtroom

While video recordings are not allowed inside the Supreme Court, The Wall Street Journal provided notes of the arguments on its live blog. Of note are questions from Justice Ruth Bader Ginsburg. She asked whether Phillips would refuse to sell pre-made products to Craig and Mullins. Waggoner maintained that he would not, since that didn’t constitute compelled speech.

Justice Elena Kagan asked what would happen if a baker refused to serve an interracial couple, or a disabled person, due to their religious beliefs. Waggoner responded by asserting that “Mr. Phillips is not basing his decisions on who his customers are, but what they are doing,” according to the Journal’s report.

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The race comparison came up repeatedly. Both Waggoner and Fransicso argued that refusing to serve someone because of their race is different than what Phillips is asking for. Yarger argued it was similar.

Chief Justice John Roberts brought the race analogy up again when questioning Cole, noting differences between how the Supreme Court treated white supremacists and Americans with traditional beliefs about marriage. Cole noted that while the Obergefell decision legalizing same-sex marriage in 2015 treated those with traditional beliefs about marriage respectfully, it “did not say that businesses could turn away gay customers,” the Journal reported.

But the Justice causing the most stir is Anthony Kennedy, seen as a swing vote. As the Journal reported, he appeared critical of Colorado during questioning. From the Journal: “‘It seems to me the state has been neither tolerant or respectful’ of the baker’s views, he said.” The Journal reports that Cole later minimized the perceived criticism, saying, “that’s just how arguments go.”

For the entirety of the Journal’s notes from the arguments, click here. For C-SPAN video footage from outside the Supreme Court today, click here.

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  • tether

    If people could accept that this is not about who the customer is, it is about the event.
    The baker clearly has stated that he is happy to do commerce with these men. It is not about the men, however he can not make a cake for a wedding that violates his beliefs. If it were discrimination the baker would refuse to sell them anything but it is not and he did not.

    • Paul

      Homosexual activists never let reason get in the way of their agenda.

      • eddiestardust

        Yes you are correct, sadly. I also offer an observation…..Happy heteronormative couples do not sue their local bakers either when planning for a wedding!

        • Tom Bor

          Happy heteronormative couples would probably sue if they were refused services offered to others, but denied them.

          • Andrew Mason

            Except the state of Colorado has sided with bakers who’ve refused their services to religious customers critical of SSM. Apparently unequal protection constitutes equality in Colorado, and Christians are no better than Nazis and racists.

          • Tom Bor

            You keep missing the difference. Phillips wasn’t asked to make a specific design or write anything he found offensive on the cake. The “Christians” requested specific artwork and writing on their cake that the baker found objectionable. Had the gay couple asked Phillips to write “Same sex marriage is God’s will” then Phillips would have had a reason to decline, since he would no doubt have found that saying offensive.

          • tether

            He had a right to decline because he found the event offensive to his believes

          • Tom Bor

            Making the cake is not an endorsement of the event, just like he’s not endorsing a straight couples wedding when he makes a cake for them.

          • Az1seeit

            To the baker, it clearly constitutes an endorsement of the event. And that’s the issue. Is this a free country or not? It is not if anyone is forced to go against their religious conscience by the government.

          • Tom Bor

            There were people who didn’t want to serve African Americans in their BBQ restaurant because of their “religious conscience”. That was ruled to be against the law. It’s a free country, just not one where people can use their religious convictions to refuse service to groups of people.

            Legally, making a cake for an occasion is not an endorsement of the occasion. Let’s see how SCOTUS rules on the law.

          • tether

            Just because it doesn’t mean endorsement to you does not mean it doesn’t to others.

          • Tom Bor

            What will matter is what the SCOTUS thinks it means, based on the law.

          • Az1seeit

            Cite your source.

          • Tom Bor

            SCOTUS case; Katzenbach v. McClung

          • tether

            If you knew your bible at all you would know that to provide support for a same sex marriage is a sin.

          • Tom Bor

            I’m not interested in your bible, just the laws of the USA.

          • tether

            I’m not surprised that you’re not interested in what the Bible says unfortunately for you. It’s interesting though a lot of laws of this nation or based on the moral Commandments of the Bible. But I’m sure you’re not interested in that either.

          • Tom Bor

            Don’t twist my words, I didn’t say I’m not interested in the Bible; I said I’m not interested in your Bible (or your interpretations, literal as you may think they are).

            I’m well aware of the basis for many of the moral underpinnings of our nations laws. The accommodation laws seem to be reflective of the golden rule; treat others as you would have others treat you.

            We also happen to live in a pluralistic society with people of many different faith beliefs and some without a faith in God.

            Luckily the USA is not a theocracy based on an evangelical view of the Bible. While there is protection of religious conviction under the law, it tends to end when the conviction becomes discrimination.

          • tether

            To refuse to make a birthday cake for him or them because they are gay would be discrimination to refuse to make a cake For a wedding that violates his believes is not discrimination

          • Andrew Mason

            No you keep missing the difference. There is no version of a homosexual cake that Phillips would be comfortable with – its inherently offensive. By contrast the Christians were refused by bakers offended by them and their values.

          • Ryan

            Heteronormative couples would simply go to another shop. That would have been the normal thing to do. No offense would have been taken, they would have not recommended the shop and moved on. But those looking to be offended will always do what it will take to be offended. They see, “easy money,” and a way to project an agenda. That’s what happens when being used as political pawns, and political pawns they have been.

    • Tom Bor

      Phillips refuses to make cakes for gay weddings. Since the only couples purchasing cakes for gay weddings are gay, the is de facto refusing to serve gay people.

      • meamsane


      • Kevin Carr

        Should a Jewish baker be forced to bake a cake for Nazis?

        • Andrew Mason

          According to the Colorado Solicitor General, yes the state has the power to force such a thing. It also has the ability to protect pro-Third Reich bakers from baking for Jews.

      • tether

        He clearly stated that he would sell them any product on his shelf. If he were discriminating against the person he would refuse them any business but he did not.
        He simply declined the part that violates his beliefs.

        • Tom Bor

          To clarify: Phillips refuses to make the same type of “custom” cakes he makes for other couples, for gay weddings.

          Creation of the type of a custom wedding cake (the type of cake Phillips typically made for all couples without specific gay supportive language) for a gay couple does not mean that he endorses same sex marriage, just like when Phillips makes a cake for say Tim and Mary, he not really saying “I personally support and approve of their union”.

        • Sylvain_A

          Is there such a thing has a marriage between 2 dogs? Phillips had no problem accepting an order for such an event.

          Also religious people claim that a marriage is between a man and a woman. Thereby, a baker cannot refuse to bake a cake for a marriage that doesn’t exist.

          Also, what scripture stipulate that you can’t bake a cake for for a gay wedding?

          • tether

            By your logic if one can’t refuse because such a wedding doesn’t exist then there is no reason to bake a cake. Why take someone’s money for an event that doesn’t exist.
            As for what scripture take your pick. There are many that tell us not to take part in or support the sins of others

  • KC

    The court will decide what the laws of the US and Colorado are and how they should be enforced. The court can never change God’s law and that is the law we all must answer to when the time comes and we are standing before Him.

  • Az1seeit

    I keep thinking…how can anyone expect constitutional justice from this Supreme Court…the same SC that codified unreality in the oxymoron that has caused this whole debacle, with the Obergefeldt decision. I’d have to refuse to bake the cake on the basis that same sex “marriage” can’t exist. Marriage is the union of a man and a woman. Anything else is not marriage. It’s like saying you want water but you want it made out of all parts hydrogen. No matter how badly you want it to be water, it’s just hydrogen. Water happens when you combine two different elements…H2O.

    • Tom Bor

      You realize in your H2O equation your advocating polygamy: two men and a woman or two woman and a man – there are three atoms in your H2O molecule.

      • Az1seeit

        No. You’re deliberately missing the point and twisting it to reflect your deception.

        • Tom Bor

          It was a joke. A nerdy joke.

  • TheSaint4JC

    It troubles me that with no absolute scientific proof that homosexuality is a genetic trait, we are comparing those who practice it with ethnicity. I hope Jack Phillips lawyers strongly refuted this point as such.

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