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Supreme Court Hears Same-Sex Wedding Cake Case

5 December 2017

For First Amendment students/fans/geeks, the US Supreme Court is hearing oral arguments in a case captioned Masterpiece Cakeshop v. Colorado Civil Rights Commission this morning (December 5, 2017).

If you Google Supreme Court Wedding Cake, you should find lots of references to the case and more detail than PG will be able to supply.

The basic facts of the case (as PG understands them) are:

The proprietor of the Masterpiece Cake Shop creates custom wedding cakes, among other things. Photos of the proprietor at work show him using an artist’s brush to add intricate designs and messages to cakes of a variety of sizes that are covered with plain white frosting. The designs and messages are specified by the purchasers of the cake.

A gay couple entered the Masterpiece Cake Shop and requested that the proprietor create a custom wedding cake that included messages affirming and celebrating their marriage as two gay men.

The proprietor replied that, because he held personal and religious objections to gay marriage, he would be unable to provide the cake. He offered to sell the couple a plain white cake that someone else could decorate with the requested messages. He also offered to refer the couple to other custom cake shops who would be happy to decorate a cake as requested by the couple.

The couple was not satisfied and left the shop. The conversation was very brief, lasting less than a minute, according to some accounts PG has read.

The couple made a complaint to the Colorado Civil Rights Commission, claiming the proprietor had improperly discriminated against them because of their sexual orientation. They also claimed the shop was a public accommodation.

From Wikipedia:

In US law, public accommodations are generally defined as facilities, both public and private, used by the public. Examples include retail stores, rental establishments and service establishments as well as educational institutions, recreational facilities, and service centers.

Under United States federal law, public accommodations must be accessible to the handicapped and may not discriminate on the basis of “race, color, religion, or national origin.”

The proprietor claimed that, under the First Amendment to the United States Constitution, his custom decorations, containing specific messages, were protected speech. What the couple was asking the Commission (and later the federal courts) to do was to force the proprietor to create messages that were offensive to him because of his religious beliefs.

From Wikipedia:

In the United States, compelled speech is governed by the First and Fifth Amendments to the Constitution. In the same way that the First Amendment protects free expression, in many cases it similarly protects an individual from being required to utter or otherwise express a thought with which she disagrees.

. . . .

Examples of compelled speech not supported by law

  • Saluting the flag — West Virginia State Board of Education v. Barnette (1943)
  • Requiring a newspaper to publish an advertisement — Miami Herald v. Tornillo (1974)

An additional element in this case is the proprietor’s religious beliefs that gay marriage is not proper and violates biblical law.

The First Amendment to the Constitution begins with the following language:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

From The Legal Information Institute, published by Cornell Law School:

Two clauses in the First Amendment guarantee freedom of religion. The Establishment Clause prohibits the government from passing legislation to establish an official religion or preferring one religion over another. It enforces the “separation of church and state.” However, some governmental activity related to religion has been declared constitutional by the Supreme Court. For example, providing bus transportation for parochial school students and the enforcement of “blue laws” is not prohibited. The Free Exercise Clause prohibits the government, in most instances, from interfering with a person’s practice of their religion.

. . . .

[James] Madison’s original proposal for a bill of rights provision concerning religion read: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed.”

The Commission ruled in favor of the gay couple and ordered that the bakery provide comprehensive staff instruction about the Colorado Anti-Discrimination Act, provide quarterly compliance reports to the Commission describing remedial actions for two years, including a report of the number of patrons who were denied service by the bakery and the reasons for denial of service in each case.

Mr. Philips, the proprietor of the bakery has said:

“It’s not about turning away these customers, it’s about doing a cake for an event — a religious sacred event — that conflicts with my conscience,” he said earlier. “My bakery, my family, my life, the work I get to do, is a gift from God and I want to honor Him in everything I do.”

The soft-spoken Phillips adds that like other artists, he has turned away cake requests for a variety of reasons: baked goods with profanity or obscene images, racial stereotypes, even those that he says would disparage homosexuals.

The American Civil Liberties Union, speaking in support of the Commission’s decision, has written:

Does this violate the bakery’s First Amendment rights?

No. The Colorado anti-discrimination law doesn’t tell the bakery how to make its cakes. What it says is that if the bakery chooses to sell cakes, it can’t refuse to sell them to certain people based on their sexual orientation. The ACLU is proud to defend the First Amendment freedoms of speech and religion. But religious freedom doesn’t give anyone the right to discriminate. If it did, any business would be free to discriminate against almost any of us — members of minority faiths, women, racial minorities, LGBT people — solely based on the owner’s views.

What’s at stake in this case?

This fall the Supreme Court will decide whether businesses that open their doors to the public have a constitutional right to discriminate.

People have deeply held beliefs about all kinds of things. If those beliefs gave anyone the right to discriminate, a tailor shop could refuse to alter a business suit for women, or a bus company could refuse to drive people of different faiths to work. If the bakery has a constitutional right to discriminate, then today it’s Dave and Charlie, tomorrow it could be you, your family members, your friends and your loved ones. Any of us could be turned away simply because of who we are.

Typically, the US Supreme Court takes many months to release its case rulings and opinions. The opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission is not expected to be released until the end of this term of the court in June, 2018.

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