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The Colorado Bakery That Refused to Serve a Gay Couple Is About to Get a Supreme Court Ruling

What to know before the ruling on Masterpiece Cakeshop is handed down

Masterpiece Bakeshop refuses to make wedding cake for gay couple Photo by Kevork Djansezian/Getty Images

Tomorrow, the U.S. Supreme Court will hear one of nation’s most divisive cases this year, involving freedom of speech, religious freedoms, anti-discrimination laws, and cake. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is, at base, a case involving a Christian baker and bakery owner who refused to make a wedding cake for a gay couple because of their sexual orientation. Here’s everything you need to know:

How did we get here?

• In 2012, an engaged couple, David Mullins and Charlie Craig, asked Masterpiece Cakeshop in Lakewood, Colorado — about 10 miles outside Denver — to make them a cake to celebrate their marriage. Owner and baker Jack Phillips refused, explaining that he does not support gay marriage because it goes against his religious faith.

• Citing Colorado’s public accommodations and anti-discrimination laws, in place since 1885, Mullins and Craig sued in 2013 on the grounds of discrimination. Phillips argued in his defense that religious and freedom of expression protections in the First Amendment “overrode” Colorado’s anti-discrimination law.

• A 2015 Colorado appeals court disagreed with Phillips, following similar rulings brought on by banquet halls, photographers, and florists, that stated that a public business could not discriminate against its customers. Phillips appealed the decision.

What’s happening now

• SCOTUS put off making a decision on whether to hear the case twice before, likely because a justice had not yet been appointed to replace Antonin Scalia, who died suddenly in February 2016. Shortly after this inauguration, Donald Trump nominated justice Neil Gorsuch, a Conservative, to the nation’s highest court; Gorsuch assumed the position in April 2017. Two months after that, the Court confirmed it would hear the baker’s appeal.

• In an unprecedented move, the Trump administration’s Justice Department publicly expressed its support of the baker earlier this year, in a September friend-of-the-court brief. Reuters notes that Gorsuch “has embraced an expansive view of religious rights” in past decisions. This has some on edge, since a decision supporting religious expression would have wide-ranging effects.

What are the arguments?

• The couple’s attorney, James Esseks, told The New Yorker in an interview earlier this year that business owners can believe whatever they want to believe, and say whatever they want to say, including, for example, “‘I think gay people shouldn’t be able to get married. It’s a sin.’” But what the constitution is clear on is that “You just can’t turn people away because of who they are.” For his part, Phillips wrote in a recently published op-ed: “Just as I shouldn’t be able to use the law to force others to design something that promotes my beliefs, others shouldn’t be able to force me to design a cake that celebrates theirs.”

• Others argue that the case is not about discriminating against a protected class of persons (those of the LGBTQ community), but about “advancing a message.” The National Review, a conservative outlet, writes that Philips, “a Christian... finds same-sex unions to be unbiblical and immoral, and he wasn’t willing to use his artistic talents to advance a message he holds to be wrong... he never, ever... discriminated against any customers on the basis of their identity.”

• David Cole, a co-counsel with the ACLU that is representing the couple, notes in this week’s NY Review of Books, this is not the first time in history the court will be deciding “whose rights should prevail when the First Amendment’s guarantees of freedom of religion, speech, and association come into conflict with equality.” He continues: “It’s so easy to conjure hypothetical variations: What if the cake includes the message ‘God bless this union’? ... Could a bakery refuse to make a birthday cake for a black family because its owner objects to celebrating black lives?...”

What’s at stake?

• If the Supreme Court upholds the appeals court decision, it will be a win for LGBTQ groups, which have been fighting claims related to the 2015 landmark decision against state-level bans on same-sex marriage.

• But if Phillips wins, it would, as Sarah Posner argues in The Nation, “create [a] new precedent but also erode advances in LGBTQ rights, ushering in enduring consequences for LGBTQ people and other protected classes.”

• Posner spoke with Jenny Pizer, law and policy director at Lambda Legal, who said if SCOTUS reverses the Colorado court’s decision, “any vendor could simply claim that his or her work is ‘part of my living my faith, and my faith says I must not make this for you because if I make this for you, I am accepting you, and there’s something about you to which I object on religious grounds.’”

Let Them Buy Cake [NYBooks]
U.S. top court to hear baker's religious objection to making cake for gay couple [Reuters]
Justices to Hear Case on Religious Objections to Same-Sex Marriage [NYT]
Cake Shop Faces Legal Action For Refusing to Make Anti LGBT Cake [E]

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