WASHINGTON – Supreme Court justices wrestled Tuesday with the line between art and commerce in the case of a Colorado baker who said making a wedding cake for a same-sex couple would violate his First Amendment rights.
An attorney with the Scottsdale-based Alliance Defending Freedom said forcing Jack Phillips to bake the cake, which he considers his art, would compel artists to express messages that “violate their core identity.”
But attorneys for the couple, Charlie Craig and David Mullins, argued that Phillips’ refusal was not about artistic expression as much as his refusal to serve a gay couple in violation of Colorado’s Anti-Discrimination Act.
Outside the courthouse, scores of protesters squared off on opposite sides of the plaza, chanting and waving signs and flags in a loud but peaceful demonstration during the 90 minutes of arguments.
But inside, justices repeatedly asked both sides where to draw the line between the state’s right to enforce public accommodation laws and an individual’s right to object – and, if that line can be drawn, how it can be applied to sexual orientation but not areas like race or religion.
“What is the line? That’s what everybody is trying to get at,” Justice Stephen Breyer asked Kristen Waggoner, who was arguing Phillips’ case.
“The reason we’re asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law … including the African Americans, including the Hispanic Americans, including everybody who has been discriminated against in very basic things of life,” Breyer said.
Waggoner insisted Phillips “is looking at not the ‘who’ but the ‘what'” that was involved, and that was same-sex marriage – which the baker opposes on religious grounds and which was illegal in Colorado in 2012 when the case began.
“The First Amendment prohibits the government from forcing people to express messages that violate religious convictions,” Waggoner said in her opening. “Yet the (Colorado Civil Rights) Commission requires Mr. Phillips to do just that, ordering him to sketch, sculpt and hand-paint cakes that celebrate a view of marriage in violation of his religious convictions.”
Justices peppered both sides with hypotheticals about artistic expression and the requirement to provide the same service to all customers, asking if a hairstylist, a makeup artist or a jeweler could be considered an artist and, thus, allowed to refuse to serve someone.
Waggoner said makeup artists or hairdressers do not produce artistic speech, but Justice Elena Kagan responded that, “Some might say the same about cakes.”
Justice Neil Gorsuch asked if Phillips’ claim “may superficially look like it’s about the message but it’s really about the person’s identity?”
But Justice Anthony Kennedy noted a comment by one of the Colorado Civil Rights commissioners that “freedom of religion used to justify discrimination is a despicable piece of rhetoric.” He asked the commission’s attorney whether that statement indicated bias on the commission.
“Tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual,” Kennedy said. “It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
David Cole, an attorney for Craig and Mullins, said they “do not doubt the sincerity of Mr. Phillips’ conviction. But to accept his argument leads to unacceptable consequences” that would include discrimination for race, gender, sexual orientation or other factors.
Outside the courthouse, Cole, a lawyer with the American Civil Liberties Union, said that giving Phillips the right to refuse to serve same-sex people would “constitutionally relegate gay and lesbian people to a second-class status.”
“The fact that somebody objects to the message that equal treatment sends, doesn’t give them a First Amendment right to opt out of the basic requirements that businesses treat all their customers equally,” Cole said.
Craig and Mullins told reporters after the hearing that the case is not “an abstract” but that it speaks to discrimination against LGBT people across the country.
A soft-spoken Phillips said the case was just as important to him. Calling himself a “cake artist” whose custom-made cakes are a form of art and free speech, he assured reporters that “I serve everyone” and that any refusal to make a cake is “never about the person.”
Waggoner said the other side’s position was “so extreme” and it could force an artist to produce a form of speech that violates their beliefs. The Alliance Defending Freedom is also representing a Phoenix calligraphy business that is challenging a city law that could force it to provide invitations for same-sex weddings.
“This court has never, never compelled artistic expression or political or ideological expression and if it does so now, we will have less civility, less pluralism and less diversity in our society,” Waggoner said outside the courthouse.
“Mr. Phillips has a great amount at stake in this case. Forcing people to violate their convictions is something that the Constitution doesn’t permit,” she said.