Supreme Court takes up wedding cake case
After months of anticipation and dueling ‘friend of the court’ briefs, the Supreme Court took up the Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case, which pits the freedoms of speech and religion against LGBT+ anti-discrimination laws, started when baker Jack Phillips refused to bake a wedding cake for same-sex couple David Mullins and Charlie Craig.
Phillips based his refusal on his religious beliefs. In addition, he argues that baking wedding cakes is ‘artistic expression’ and asserts that is covered by free speech protections.
During the first half of the Supreme Court hearing, hairstylists, jewelers, florists, invitation designer and makeup artists were all part of the discussion. “Justice Elena Kagan wanted to know ‘how do you draw a line?’ about what counts as speech,” the Associated Press reported.
“Kagan wanted to know: ‘Why is there no speech in creating a wonderful hairdo?’ and ‘Where would you put a tailor?’”
Attorneys for Phillips, associated with the anti-LGBT+ legal group Alliance Defending Freedom, have said in court filings that baking a wedding cake is artistic expression. Justice Sonia Sotomayor told Phillips attorney, “The primary purpose of a food of any kind is to be eaten.”
Justice Anthony Kennedy, who has been a key vote in past LGBT+ cases, and who has written every major LGBT+ rights opinion over the last two decades, seemed skeptical of the baker’s attorney citing the First Amendment. He asked whether, if Phillips wins the case, he could put a sign in his shop window saying he doesn’t bake cakes for same-sex weddings, according to the AP.
“But later in the argument Kennedy said Colorado's human rights commission seemed ‘neither tolerant nor respectful of Mr. Phillips' religious beliefs’ when it found his refusal to bake a cake for the gay couple violated the state's anti-discrimination law.”
Kennedy and some of the conservative justices raised the possibility that the proceedings by the Colorado commission in the case may have been infected with bias, said the Washington Post.
Although Kennedy has been key to major LGBT+ rights cases, including the Obergefell decision which extended same-sex marriage to the entire country, he also has taken a broad approach to freedom of speech.
The arguments lasted over the 60 minutes allotted, with Justice Kennedy appearing to be what will turn out to be the swing vote, regardless of which way the court goes on the case.
“The American Civil Liberties Union and other rights groups that have sided with the gay couple said they fear a ruling for Phillips could allow for discrimination by a range of business owners. They said the court has never recognized what they call a constitutional right to discriminate,” said the AP.
The Justice Department is supporting Phillips in the case, and was granted 10 minutes to speak during the hearing.
The arguments taking place in the courtroom were juxtaposed with competing rallies in front of the building. Supporters of Phillips were chanting “We got Jack’s back”, while supporters of Mullins and Craig were responding with “Love wins”.
LGBT+ advocates say the Masterpiece Cakeshop case is not about cake, and not about freedom of speech or religion. It is instead about discrimination.
Copyright The Gayly – December 5, 2017 @ 11:40 a.m. CST.