Justices consider whether a baker has right to discriminate against gays
Charlie Craig and David Mullins at home in Denver last November. | David Zalubowski/AP

WASHINGTON–Under Colorado law, businesses that offer “sales to the public” cannot discriminate against customers based on several categories, including race, sex, marital status, national origin, and, since 2008, sexual orientation.

But what about people who claim their work is “expressive” and don’t want to express support for gay couples?

In 2012, Charlie Craig and David Mullins, a gay couple, asked Jack Phillips, owner of the Denver area’s Masterpiece Cakeshop, to bake a cake for their upcoming wedding.  Phillips refused. Citing his religious objections to same-sex marriage, Phillips wouldn’t even discuss selling the couple a custom-designed cake, even one identical to cakes he’d sold to other customers.

Humiliated, Craig and Mullins fled the bakery. They complained to the Colorado Civil Rights Commission. The commission ruled Phillips violated Colorado law.

The case wound up in the Supreme Court on Dec. 5.  There, Phillips’s attorney, Kristen Waggoner, argued that forcing Phillips to treat Craig and Mullins the same as an opposite-sex couple would violate Phillips’s First Amendment rights to freedom of speech and religion.

Baking a cake, Waggoner claimed, is “artistic expression,” just like an artist sketching on canvas.  The First Amendment, she said, prevents the government from forcing artists to create expression that violates their beliefs.

Recently, social conservatives have seized on the amendment to limit legal protection for same-sex marriage and abortion rights. Waggoner herself works for a rightwing lawyers’ group, with over 3,000 lawyers worldwide, that calls itself the “Alliance Defending Freedom.” In the 2015-16 tax year, ADF received more in donations than the American Civil Liberties Union.

Waggoner immediately ran into a barrage of questions from Justices Ruth Bader Ginsburg and Elena Kagan.  If the court protects Phillips, they asked, where do you draw the line?  Who else could claim First Amendment protection for refusing equal service to same-sex weddings: The wedding florist, the designer of wedding invitations or dinner menus, the jeweler or the hair stylist, the tailor?  What about the hotel asked to rent out a ballroom?

In a friend-of-the-court brief, the Service Employees called Waggoner’s argument an “expansive concept” that would “authorize courts to strike down all manner of commercial legislation.” At oral argument, Justice Anthony Kennedy warned of a national movement to pressure service providers to “boycott” gay weddings.

Asked Justice Sonia Sotomayor, “When have we ever given protection to a food? The primary purpose of a food of any kind is to be eaten.”

These questions led Waggoner to make tenuous distinctions.  While claiming protection for the wedding-cake baker, at one point she rejected it for the chef who prepares the rest of the banquet.  Bakers get protection, but for Waggoner architects don’t.

She also had to address a baker’s hypothetical refusal to bake for an interracial wedding — an analogy Chief Justice John Roberts found “compelling.”  Waggoner called racial discrimination “[v]ery different,” and claimed the state has more interest in protecting
interracial couples than in protecting same-sex couples.

But she argued bakers could refuse services to interreligious couples.

Because states may not disapprove or ban speech based on its point of view, eventually Waggoner argued Colorado had not applied its law in a viewpoint-neutral way. Justice Samuel Alito gave an example: In other cases, Colorado permitted three bakers to reject baking cakes with anti-equality messages.

These examples bothered Justice Kennedy, as did words of one Colorado Civil Rights commissioner, who called it “despicable” to use religion to justify discrimination. Colorado, said Justice Kennedy, has been “neither tolerant nor respectful” of Phillips’s religious beliefs.

Justice Kennedy has authored all the Supreme Court’s opinions protecting gay rights.  But he also has often voted to protect freedom of speech. So he might find Colorado’s failure to provide equal treatment to all points of view a narrower basis to rule for the baker
in this case — without handing gay-rights advocates a major setback.

Solicitor General Noel Francisco provided the Trump administration’s voice for protecting Phillips’s right to discriminate.  Not only did Francisco call baking a wedding cake “speech,” but he called a wedding an “expressive event.”

That characterization led Justice Kagan to ask about other “expressive events,” such as bar mitzvahs, anniversaries, and birthdays.  Added Justice Stephen Breyer: “We want some kind of distinction that will not undermine every civil rights law.”

Arguing for the state’s Civil Rights Commission, Colorado Solicitor General Frederick Yarger had no easier time drawing distinctions that satisfied the justices.  Chief Justice Roberts asked about a pro-bono Catholic legal services organization that refused to provide services connected to same-sex marriages. Aren’t legal services mostly “speech”?

The ACLU’s David Cole argued on behalf of Craig and Mullins. He pointed out Craig and Mullins never requested any particular cake design or any particular message. If Phillips has the right to discriminate, a photographer who thought women should stay out of the workforce could refuse to take pictures of female CEOs, Cole said.

As in many cases, observers think Justice Kennedy’s vote could determine the outcome.  But the court will have trouble ruling for Phillips, the baker, without opening the door to widespread challenges to other civil-rights laws.  A decision is expected in late June.


David Sobelsohn
David Sobelsohn

David Sobelsohn is the Supreme Court correspondent for Press Associates Inc. (PAI), the union news service in Washington D.C. Sobelsohn's career has combined organizing and politics with teaching and scholarship.