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Thursday, October 26, 2017

Wedding Cakes, the First Amendment and Religion

Jack Phillips courtesy of SCOTUSblog
The first week in December, the SCOTUS will hear argument in a case from Colorado where that state's civil rights commission cited a bakery for not producing a wedding cake for a same-sex couple. Deeply-held religious beliefs and gay rights are on schedule for a high-speed collision in this interesting and much-watched case.

Very similar to the apple orchard case here in Michigan, this Colorado case will test the limits of civil right for gay couples. Should private businesses be compelled -through a state's "public accommodation" statute- to provide services to gay couples when doing so would offend the religious beliefs of the business owner?

Who better to break it all down than Amy Howe of SCOTUSblog in her always-excellent "In Plain English" feature:
Colorado’s anti-discrimination law bars places of public accommodation – that is, businesses that sell to the public – from discriminating based on (among other things) sexual orientation. In 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop, a Denver-area bakery, to order a cake to celebrate their upcoming wedding. But the couple left empty-handed … and upset. Masterpiece’s owner, Jack Phillips, is a Christian who closes his business on Sundays and refuses to design custom cakes that conflict with his religious beliefs – for example, cakes that contain alcohol, have Halloween themes or celebrate a divorce. And because Phillips also believes that marriage should be limited to opposite-sex couples, he told Craig and Mullins that he would not design a custom cake for their same-sex wedding celebration.
Phillips' two attempts to dismiss the Colorado Civil Rights Commission's complaint failed and the commission's ruling against the business and its owner was upheld by the Colorado Court of Appeals. SCOTUS granted certiorari when the Colorado Supreme Court took a pass on the case.

Over 50 amicus briefs have been filed in the case, the United States Department of Justice and the U. S. Conference of Catholic Bishops, among many others. An amicus brief is filed by leave of the Supreme Court, allowing groups and organizations that have an interest in the outcome of a case to supply a brief for the justices to consider.

Phillips, the cake artist, told the NYT last month, "it's more than just a cake, it's a piece of art in so many ways." Phillips says the cake he was asked to create was an important symbol for use in a wedding that he does not condone as it is not a wedding between a man and a woman.

His potential customers disagreed; Charlie Craig told the Times, "we asked for a cake, we didn't ask for a piece of art or for him to make a statement for us. He simply turned us away because of who we are." Colorado issued two court orders that found the baker's conduct violated the state's public accommodation law.

In his brief filed with the SCOTUS, Phillips asserts that the Colorado law prevents him from earning a living through the creation of expressive pieces of art and prevents him from living out his religious beliefs freely in the public square. Phillips asserts that his First Amendment right to free speech includes visual expression. Accordingly, he asserts that Colorado's public accommodation law must subjected to "strict scrutiny"; a scrutiny that will demonstrate the state law unconstitutional.

For their part, the civil rights commission and the gay couple assert that the state law passes even the strictest of scrutiny because it regulates conduct only; not speech.

This case has had a tortured journey to certiorari; it was considered at no less than 15 case conferences before getting the requisite 4 votes. Legal scholars were not hopeful the case would be accepted in light of a similar case -involving wedding photographers- getting rejected by the High Court in 2014.

Oral arguments in December will provide an excellent window into the Court's internal debate. The decision -no doubt- will be one of the last to be released next June.

Stay tuned as this case will really have a significant impact on how business gets done in the town square.

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