The Supreme Court on Tuesday heard arguments in the case of Masterpiece Cakeshop, v. Colorado Civil Rights Commission. Christian baker Jack Phillips refused to create one of his “masterpiece” wedding cakes for a same-sex marriage ceremony. The exercise of his religious beliefs was found to be in violation of Colorado’s anti-discrimination statutes, whereupon, he lost his business.
In the hearing, Phillips’ attorneys argued on two grounds: religious liberty and freedom of speech, which court precedents have extended to apply to works of art. His cakes are artistic expressions (note the name of his business). Therefore, he should not be coerced to create works of art that violate his religious beliefs.
The liberal justices on the court questioned that art form, saying that a cake is just something to eat. They asked how far the artistic expression argument should extend. Are the other people involved in a wedding–jewelers, florists, hairdressers, dress designers, etc.–also artists? (Why wouldn’t they be?)
The conservatives asked to what extent non-discrimination statutes could force people to make expressions they disagreed with. Could a black baker be forced to make a cake celebrating the Ku Klux Klan? Would Catholic Legal Services have to take the case of a woman advocating for abortion?
The justices on each side seemed evenly divided, so that made the comments of Justice Kennedy, who sometimes votes conservative and sometimes votes liberal, all the more significant. He took issue with a statement made by a Colorado official that using religion to discriminate is “despicable.” Justice Kennedy said this:
“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.”
Justice Kennedy wrote the decision legalizing gay marriage. But in that ruling, he also said this:
“It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”
From Michael Brown in his article Why the Masterpiece Cake Case Matters to All Americans, I learned some telling things about the baker, Jack Phillips. He doesn’t discriminate against gays. He would sell them cookies, pastries, and even a generic off-the-shelf wedding cake. What he wouldn’t do is make one of his custom-made, personal creations celebrating a particular couple’s union.
He turns down other cakes that violate his beliefs: He won’t do lewd confections for bachelor parties. He won’t do horror-themed decorations. He won’t make cakes for Halloween. Is this discrimination too?