4 Highlights From Christian Baker’s Wedding Cake Case at Supreme Court

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(Emilie Kao, The Daily Signal) The Supreme Court heard oral arguments on Tuesday in a closely watched case dealing with free speech, religious liberty, and same-sex marriage.

Specifically, the justices considered whether the state of Colorado can force Jack Phillips, a Christian baker, to create a custom cake for a same-sex wedding against his deeply held religious beliefs.

Attorneys for Phillips clearly explained that he seeks to exercise his freedom only to speak messages that he agrees with, while still welcoming all customers into his store. The First Amendment’s free speech and religious liberty clauses protect his freedoms to do just that.

In a lengthy and charged oral argument, the nine justices wrestled with how Americans who hold different views on marriage in our post-Obergefell society can continue to live with each other in mutual respect.

Here are some highlights of the argument.

1. Mutual Tolerance Is Essential in a Free Society

In one of the most charged exchanges of the day, Justice Anthony M. Kennedy questioned Colorado Solicitor General Frederick Yarger about whether a member of the Colorado Civil Rights Commission who compared Phillips to a racist and a Nazi demonstrated anti-religious bias—and that, if he did so, whether the judgment against Masterpiece should stand.

After disavowing the commissioner’s comments, Yarger argued that the ruling should still stand. But Kennedy returned to the issue again, telling Yarger that “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.”

Kennedy also pointed out there were other cake shops that would have accommodated Charlie Craig and David Mullins, the same-sex couple who requested a cake for their wedding.

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In a similar line of questioning, Justice Samuel Alito pointed out that the state of Colorado had failed to demonstrate mutual tolerance when it only protected the freedom of cake artists who landed on one side of the gay marriage debate—namely, the state’s side.

When three religious customers went to cake artists to request cakes that were critical of same-sex marriage, those cake artists declined—yet Colorado did not apply its anti-discrimination statute to punish the artists. But when Phillips declined to create a cake to celebrate a same-sex marriage, Colorado imposed a three-pronged penalty that drove him out of the wedding cake business, causing him to lose 40 percent of his business.

2. Compelled Speech for Everyone

The irony of the comparison of Phillips to a Nazi is that both the ACLU lawyer representing the gay couple (David Cole) and the Colorado solicitor general admitted the state could rightfully force cake artists to celebrate the racist ideals of white supremacy, or one of the most infamous events in world history, the Holocaust.

At one point, Justice Stephen Breyer followed up on a question from Justice Neil Gorsuch about whether a cake artist could be forced to create a cross-shaped cake for a religious group that shared the beliefs of the KKK. Cole responded that if the cake artist did so for the Red Cross, then yes, the artist would have to do so for the religious group as well.

Similarly, Justice Samuel Alito asked Colorado if a cake artist who created a cake with words celebrating Nov. 9 for someone’s anniversary could also be forced to create the same cake to celebrate Nov. 9, 1938.

On that infamous night, known as “Kristallnacht,” the Nazis launched their pogrom against Jews by burning over 1,000 synagogues and damaging more than 7,000 Jewish businesses.

In the exchange with Alito, the Colorado solicitor general said that cake artists could not discriminate on the basis of identity, but could discriminate on the basis of messages. Gorsuch later responded, saying that’s exactly what Phillips has argued.

3. Disagreement Does Not Equal Discrimination

Kennedy also challenged Colorado and the ACLU on their argument that Phillips discriminates on the basis of identity, rather than his idea of what constitutes a marriage. In an exchange with the ACLU attorney, Kennedy called the repeated attempts to characterize Phillips as discriminating on the basis of identity “too facile.”

During the oral arguments, the court appeared to recognize what is patently obvious from the facts. Phillips welcomes all people into his store, encourages them to buy off-the-shelf items, and will make custom-designed cakes for them provided they don’t ask for items that violate his beliefs.

He has served gays for the 24 years his store has been in operation and welcomes their business to this day. He does not discriminate against anybody because of their identity.

So comparisons to shopkeepers in the Jim Crow South who sought to keep the races “separate but equal” are a smear that divert attention from the real issue: Phillips simply disagrees with the state on the issue of marriage.

Roberts appeared to recognize this when chiding the ACLU for lumping in supporters of traditional marriage with racists, noting that in Obergefell, the court had said support for traditional marriage is rooted in “decent and honorable” premises.

4. Orthodoxy Determined by the State

Finally, the oral arguments revealed the scope of how far the state of Colorado is willing to go to impose its views of marriage on citizens. In one line of questioning from Roberts, Colorado admitted that it would force Catholic Legal Services to provide a same-sex couple with legal services related to their wedding even if it violates Catholic teachings on marriage.

And in questioning from Alito, the ACLU answered that the state could force a Christian college whose creed opposes same-sex marriage to perform a same-sex wedding in its chapel.

Like many Americans, Phillips seeks to work in a manner consistent with his deeply held religious beliefs, including on marriage. In order to follow his conscience, he has turned down requests for cakes that contain messages expressing certain ideas: Halloween and divorce, anti-American themes, and even anti-gay messages.

What he has never done is turn away anyone because of who they are.

The Supreme Court should uphold the rights of all Americans to work according to their religious beliefs and to be free from government intrusion that would force them to speak messages in violation of their deeply held beliefs.

After its decision in Roe v. Wade, the court respected the freedoms of Americans on both sides of the abortion debate. It rejected the argument that opposition to abortion is rooted in animus toward women because it recognized that there are many other rational reasons why people oppose abortion.

This is no different. There are many Americans who support traditional marriage for reasons that have nothing to do with animus toward gays. All Americans will benefit when free speech and religious liberty are robustly protected.

The court’s decision in Masterpiece Cakeshop can help foster more civil dialogue on marriage so that we can all live according to our consciences and in peace with one another.

Republished with permission from The Daily Signal via iCopyright license

  • ExtremeRC

    Judge Kennedy better be careful. If he shows he’s leaning towards siding with religious rights, the same people that bumped off Scalia might come for him before the decision is released. They’d prefer a 4-4 tie, thus upholding the Colorado law.

  • Born Again Southern Pride

    They never get to the real question… where does the government get the right to impose the edict of the court in one case on all of us? A single case ruling cannot bind all of us. That is not how it works. But that is the tyranny they impose on us.

    “Today I am going to show you what the court is actually empowered to do under the constitution. Not what you have been TOLD all of your life. Not what the liars and controllers want you to believe. But what it is actually empowered to do. And after I do that you will see that it makes perfect sense. And you will see that if the court was doing what it was actually authorized to be doing, there wouldn’t be ANY CONCERN at all about who was ON THE COURT. Because it wouldn’t hardly matter to you.
    The judicial section of the constitution is short. You should go look. But I will save you some time.  The activating portion of it is really just ONE SENTENCE.

    The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

    That my friend is ALL it says about the supreme court’s supposed powers. Do “judicial powers” mean that the court can amend the constitution? Of course not. Does having “judicial power” mean that once the court rules in one case that that the opinion “becomes the constitutional law” for all cases that follow? No. Does it say that once the court rules that there must be a constitutional amendment to “overturn it”? No. It doesn’t say ANY of those things because none of them are true. Those are all lies you have been told.
    Judicial power is just that. The court is there to rule on actual cases and controversies. NOTHING more. They can’t issue sweeping edicts about whether a law is or is not constitutional in general. All they can do is decide a single case. Here is a simple explanation of what the court is empowered to handle.
    A case or controversy, also referred to as a Justiciable controversy, must consist of an actual dispute between parties over their legal rights that remain in conflict at the time the case is presented and must be a proper matter for judicial determination. A dispute between parties that is moot is not a case or controversy because it no longer involves an actual conflict.  cite.

    The decision in a case only binds THE PARTIES involved in THAT case. Nothing more.  Judicial power is the power to decide a case and controversy.
    If they had been given some broad sweeping power to tell us what the law was in general and then to BIND US ALL TO THAT OPINION, then language saying that would appear IN the constitution. But it does not, because they don’t have that power.”
    source: the truth about the law