Court seems divided in cake case examining religious rights, expression

IMAGE: CNS photo/Rick Wilking, Reuters

By Carol Zimmermann

WASHINGTON (CNS) — The U.S. Supreme Court seemed equally
divided in the long-anticipated oral arguments Dec. 5 about the baker who
refused to make a wedding cake for a same-sex couple because of his religious beliefs.

Even Justice
Anthony Kennedy’s comments went right down the middle, from expressing concern
for those who would be shut out of services to later stressing that “tolerance
is a two-way street” and saying the state of Colorado, where the bakery is
located, seemed to be “neither tolerant or respectful” of the baker’s

The case,
Masterpiece Cakeshop v. Colorado Civil Rights Commission, pits anti-discrimination
laws against freedom of speech and freedom of religious expression.

It drew
strong feelings on both sides long before the court heard the arguments with the
filing of 100 friend-of-the-court briefs months ago and the crowds lined up for
days hoping to get into the court during the arguments. Crowds also gathered on
the Supreme Court steps under cloudy skies and warm temperatures, chanting and
holding aloft placards such as “Justice for Jack” (the baker) and
“Open for All.”

The U.S
Conference of Catholic Bishops filed a friend-of-the court brief in support of
the baker joined by the Colorado Catholic Conference, Catholic Bar Association,
Catholic Medical Association, National Association of Catholic Nurses-USA and
National Catholic Bioethics Center.

after the hour and a half of oral arguments, chairmen of three USCCB committees
issued a statement saying: “America has the ability to serve every person
while making room for valid conscientious objection.”

It also
said it hoped the court would continue to “preserve the ability of people
to live out their faith in daily life, regardless of their occupation,”
noting that artists “deserve to have the freedom to express ideas — or to
decline to create certain messages — in accordance with their deeply held

The statement
was issued by Archbishop Joseph E. Kurtz of Louisville, Kentucky, chairman of
the Committee for Religious Liberty; Philadelphia Archbishop Charles J. Chaput,
chairman of the Committee on Laity, Marriage, Family Life and Youth; and Bishop
James D. Conley of Lincoln, Nebraska, chairman of the Subcommittee for the
Promotion and Defense of Marriage.

The case
before the court at the end of 2017 was five years in the making, beginning in 2012
when Charlie Craig and David Mullins asked the Colorado baker, Jack Phillips,
to make a cake for their wedding reception. Phillips refused, saying his religious
beliefs would not allow him to create a cake honoring their marriage.

The couple
filed a complaint with the Colorado Civil Rights Commission, which decided
the baker’s action violated state law. The decision was upheld by the Colorado
Court of Appeals. The Colorado Supreme Court wouldn’t take the case, letting the ruling stand. The U.S. Supreme Court agreed to hear the case.

oral arguments at the high court, many questions came up about what constitutes speech, since the
baker claimed he should have freedom of speech protection.

Elena Kagan asked if a florist, chef or makeup artist also should have the same
protection and other roles also were called into question such as tailors, or invitation
designers, as were other cakes; pre-made cakes, for example, would not be an
issue of compelled speech.

And as Kristen
Waggoner, the Alliance Defending Freedom attorney representing Phillips, said
“not all cakes would be considered speech.”

Amid the
back and forth between what could be considered artistry and questions about
how artists could be compelled to convey messages they disagree with, Justice
Stephen G. Breyer asked: “Well, then, what is the line? That’s what
everybody is trying to get at.”

we want a distinction that will not undermine every single civil rights law,”
he added.

The bulk
of the defense for the baker focused on his freedom of speech rights, which
attorneys argued would be violated by forcing him to make this cake.

said the court was saying it had the discretion to decide what speech is offensive
and what isn’t, but it didn’t “apply that in a fair way to Mr. Phillips.”
She also said that “what’s deeply concerning” is how speech could be
compelled of “filmmakers, oil painters and graphic designers in all kinds
of context.”

The arguments
against the baker questioned if failing to provide services to same-sex couples
was discriminatory.

David Cole, a lawyer for the American Civil Liberties
Union, defending the couple, said discrimination against the couple who wanted
the cake consigned them to “second-class status.”

The last
minutes of the oral arguments boiled down to the opposing views but also didn’t
reveal a clear path forward.

Sonia Sotomayor said the nation’s views about interracial marriages
“didn’t change on its own” but because of “public accommodation
laws that forced people to do things that many claimed were against their
expressive rights and against their religious rights.”

it is you choose to sell, you have to sell it to everyone who knocks on your
door, if you open your door to everyone,” she added.

response, Waggoner said it would be a grave offense to the First Amendment to
“compel a person who believes that marriage is sacred, to give voice to a
different view of marriage and require them to celebrate that marriage.”

suggested not participating in weddings or creating neutral wedding cakes but
that refusing to offer goods to some goes against public anti-discrimination laws.

in her last allotted minute said: “A wedding cake expresses an inherent
message that is that the union is a marriage and is to be celebrated, and that
message violates Mr. Phillips’ religious convictions.”

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Zimmermann on Twitter: @carolmaczim.

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