Religious liberty advocates left the U.S. Supreme Court Dec. 5 with some hope that the justices would rule in favor of a Colorado cake artist who refused to design a wedding cake for a same-sex wedding celebration.
The high court heard oral arguments in a major free-speech and free-exercise-of-religion case at the center of the contentious debate between religious liberty and sexual liberty. Multiple cases involving wedding vendors who oppose using their talents in support of gay marriage are being contested in the courts, but it was an appeal by Jack Phillips and his Masterpiece Cakeshop that gained the justices’ consideration first.
The Supreme Court’s decision – which is expected before its term ends in late June or early July 2018 – could be pivotal in determining how much liberty is possessed by Christians and others in the face of governmental requirements that they believe violate their consciences.
“The Supreme Court has an opportunity to safeguard the freedom of expression, a vital right to all Americans in every walk of life, and we pray the court takes that opportunity,” said Travis Wussow, general counsel and vice president for public policy of the Southern Baptist Ethics & Religious Liberty Commission (ERLC).
“This case is about whether the government can force Jack to use his creative gifts to share a message that violates his sincerely held religious beliefs,” Wussow told Baptist Press (BP) in written comments. “A win for Jack would be a win for future Americans seeking to live a life of integrity, open and free in the public square.”
Phillips, who is a Christian, declined to design and decorate a cake for the wedding of two men because of his belief that marriage is between only a male and a female. He told the couple, however, he would make and sell them all other baked items.
After the men filed a complaint with the state, the Colorado Civil Rights Commission ordered Phillips to create custom cakes for same-sex ceremonies or quit designing wedding cakes. He stopped designing wedding cakes. The commission also ordered him to re-educate his employees on complying with the Colorado Anti-discrimination Act (CADA), which includes sexual orientation as a protected class, which the panel found Phillips had violated.
When Phillips appealed, the Colorado Court of Appeals upheld the commission’s order, and the Colorado Supreme Court declined in 2016 to review the decision.
Associate Justice Anthony Kennedy, a frequent swing vote on the court, provided encouragement to lawyers supporting Phillips with some of his questions and comments during the oral arguments.
Kennedy asked Frederick Yarger, Colorado’s solicitor general, if he would disavow the statement of a state civil rights commissioner who said, in the justice’s words, “freedom of religion used to justify discrimination is a despicable piece of rhetoric.”
Yarger disavowed the remark, and Kennedy later said, “Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
Yarger said he didn’t “agree that Colorado hasn’t taken very seriously the rights of those who wish to practice their faith.”
Kennedy took issue with an argument used by David Cole, the American Civil Liberties Union’s (ACLU) national legal director representing the gay couple, who said Phillips’ refusal to design a cake was based on the gay identity of the men.
“[S]uppose [Phillips] says, ‘Look, I have nothing against gay people,’” Kennedy said. “He says, ‘But I just don’t think they should have a marriage because that’s contrary to my beliefs.’”
In response, Cole contended “there’s no question that identity discrimination is involved here because, again, the only thing the baker knew was the identity of the people” involved.
Kennedy disagreed, saying, “It’s not their identity; it’s what they’re doing. … Your identity thing is just too facile.”
After sitting in on the arguments, Eric Baxter, senior counsel for the public-interest legal institute Becket, said Kennedy “seemed very aware that tolerance is a two-way street and that a free society requires it to run both directions.”
Michael Whitehead, a Southern Baptist lawyer in suburban Kansas City, Mo., who also was in the courtroom, said there is “reason to hope Kennedy will lean toward free speech and against anti-religious animus by the Colorado Civil Rights Commission.”
“This is a pivotal case in the battle for religious liberty,” said Whitehead, who wrote a friend-of-the-court brief filed by the ERLC and others in support of Phillips.
“The questioning was intense to both sides, and the result is too close to call,” Whitehead told BP in written remarks.
Baxter said he is optimistic in an email interview.
“Almost all of the judges seemed to get that there is a difference between refusing to create a cake because of the cake maker’s deeply held religious beliefs, which is what Mr. Phillips did, and refusing to create the cake because of the customer’s sexual orientation,” Baxter said.
“They seemed to get that the thought of the government forcing anyone to participate in ceremonies like weddings, bar mitzvahs, baptisms or funerals is troubling,” Baxter told BP. “The government should not be able to force anyone to celebrate, to clap for or to salute at someone else’s ceremony against their own religious convictions.”
Associate Justice Samuel Alito asked Cole if “someone can be compelled to write particular words with which that person strongly disagrees,” a position he attributed to the state as well.
“If he was written the same words for others, and the only difference is the identity of the customer, yes,” Cole replied.
Kristen Waggoner, senior counsel for Alliance Defending Freedom who argued on behalf of Phillips, told reporters afterward the Supreme Court has never compelled artistic expression. “And if it does so now, we will have less stability, less pluralism and less diversity in our society,” she said.
Baxter, assessing the arguments by the ACLU’s Cole, said, “… if they win, a lot of free speech will be at risk.”
“There are many reasons – both religious and secular – why someone might object to a particular wedding,” he told BP. “The court can no more force someone to celebrate a wedding than it can force them to say the Pledge of Allegiance, and it can no more force someone to support someone else’s celebration than it could force someone to raise the flag for the Pledge of Allegiance.”
During the arguments, U.S. Solicitor General Noel Francisco said in support of Phillips, “[W]hen you force a speaker to both engage in speech and contribute that speech to an expressive event that they disagree with, you fundamentally transform the nature of their message from one that they want to say to one that they don’t want to say.”
Alito and Waggoner both pointed to the civil rights commission’s divergent handling of complaints regarding bakers who would not design cakes about same-sex marriage. An individual who asked three businesses to create a cake opposing gay marriage was refused and complained to the commission. The commission rejected his complaint.
“It’s OK for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage,” Alito said in describing the commission’s ruling. “But when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage.”
Members of the court’s liberal wing – Associate Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan – peppered Waggoner with questions, especially regarding hypothetical situations that might be similar to designing a wedding cake. Kennedy was among those who expressed concerns about the impact of Phillips’ position.
Many liberal religious groups voiced opposition to granting Phillips the right to refuse service to a same-sex couple.
“Using Christianity and religious liberty to justify discrimination runs counter to our faith which calls us to love our neighbors as ourselves because they are created in God’s image,” said Jennifer Butler, chief executive office of Faith in Public Life, in a written statement.
More than 40 friend-of-the-court briefs were filed with the court on behalf of each party.
In addition to the ERLC, others filing briefs in support of Phillips included 86 members of Congress, 20 states or governors of states, Becket, Billy Graham Evangelistic Association, Christian Legal Society, U.S. Conference of Catholic Bishops, Agudath Israel of America, the libertarian Cato Institute, National Black Religious Broadcasters and National Hispanic Christian Leadership Conference. Jonathan Whitehead, also a Southern Baptist lawyer in suburban Kansas City, Mo., and the son of Michael Whitehead, wrote the brief for the members of Congress.
Among those signing on to briefs in support of the Colorado commission were the Baptist Joint Committee for Religious Liberty; 211 members of Congress; 19 states and the District of Columbia; American Bar Association; NAACP; Americans United for Separation of Church and State; Freedom From Religion Foundation; and various religious, disability and lesbian, gay, bisexual and transgender organizations.
The Christian Life Commission of the Missouri Baptist Convention was among those joining the ERLC in its brief.
The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission.
(EDITOR’S NOTE – Tom Strode is the Washington bureau chief for Baptist Press, news service of the Southern Baptist Convention.)