Supreme Court divided in gay wedding cake case
The Supreme Court appeared split this week over whether a Colorado baker who refused to make a wedding cake for a same-sex couple is protected by the First Amendment, in a case that could have far-reaching implications for gay rights and religious freedom. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, baker Jack Phillips argued that his First Amendment rights to free expression and free exercise of religion take precedence over Colorado’s anti-discrimination law. But in oral arguments, liberal justices expressed concern that ruling in Phillips’ favor would open the door to allowing businesses to discriminate. The conservative wing of the court appeared more sympathetic to Phillips, suggesting that a tolerant society must allow for some dissent based on religious principles.
The decision will almost certainly come down to Justice Anthony Kennedy’s swing vote. Kennedy is considered a stalwart ally of gay rights—authoring the landmark opinion in 2015’s Obergefell v. Hodges, which legalized gay marriage—but he has also favored broad interpretations of free expression. Kennedy appeared to be torn between both sides. At one point, he suggested that a bakery with a sign saying “We don’t bake cakes for gay weddings” would violate the dignity of gay couples. Later, however, he said that the Colorado Civil Rights Commission had been “neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
What the columnists said
If the justices rule in favor of Phillips, “America will almost certainly regret it,” said Dave Helling in The Kansas City Star. “Let’s say a Muslim couple walks into a shop and asks for a wedding cake. Could a Christian baker deny the sale, claiming a faith exemption?” Some have asked why the same-sex couple didn’t merely look for another bakery, “as if discrimination were a mere inconvenience. It’s the segregated lunch counter all over again.”
Comparing Jack Phillips to segregationists is ridiculous, said David French in NationalReview.com. Masterpiece Cakeshop “baked cakes for people of all races, creeds, colors, and sexual orientations.” What the baker objected to was being forced by the government to use his artistic talents to make this specific cake. “If a black baker refuses a white customer’s request to design a Confederate-flag cake, he’s not discriminating on the basis of race. He’s refusing to advance a message.” Sometimes a cake is more than just a cake, said Jeff Jacoby in The Boston Globe. Whether it’s oil on canvas or “custom-designed edible artwork,” the government has no right telling artists what they can or can’t create.
“Religious liberty” cases like this one have become the new front line in the culture war, said Amelia Thomson-DeVeaux in FiveThirtyEight.com. Christian conservatives are hoping to use the courts to carve out protections for their views. Phillips’ case might not be strong enough to trigger a religious exemption, but others, such as wedding singers or photographers, might be more successful. If Phillips does win, litigation will be needed to clarify who can claim similar protections. Either way, “the struggle over religious exemptions won’t end anytime soon.” ■