LITTLETON, Colo. — A decade ago, a Colorado baker named Jack Phillips turned down a gay couple who asked him for a wedding cake, saying a state law prohibiting discrimination based on sexual orientation should yield to his faith.
The dispute, a white-hot flashpoint in the culture wars, went to the Supreme Court. But Judge Anthony M. Kennedy’s narrow majority opinion in 2018 did not settle the question of whether the First Amendment permits discrimination by public businesses based on the religious beliefs of their owners. Indeed, the opinion acknowledged that the court had merely kicked down the street and would have to decide “a future controversy involving facts similar to these”.
This controversy has now arrived, and the facts are indeed similar. A graphic designer named Lorie Smith, who works a few miles from Mr. Phillips’ bakery, Masterpiece Cakeshop, challenged the same Colorado law on the same grounds.
“He’s an artist,” Ms Smith said of Mr Phillips. “I am also an artist. We should not be punished for creating consistent with our beliefs.
The basic arguments of the case, which will be argued in the Supreme Court on Monday, are as familiar as they are polarizing.
On the one hand, there are people who say that the government should not force them to violate their principles to earn a living. On the other, same-sex couples and others who say they are entitled to equal treatment from businesses open to the public.
Both sides say the consequences of the court’s decision could be huge, although for different reasons. Ms Smith’s supporters say a state ruling would allow the government to force all manner of artists to declare things contrary to their beliefs. His opponents say a ruling in his favor would blow anti-discrimination laws and allow companies engaged in expression to refuse to serve, say, black people or Muslims based on abhorrent but sincere beliefs.
The court that will hear these arguments has been transformed since the 2018 ruling. After Justice Kennedy retired later that year and Justice Ruth Bader Ginsburg died in 2020, the Supreme Court swung to the right and was exceptionally receptive to demands for religious freedom.
Additionally, when the Supreme Court overturned Roe v. Wade in June, Judge Clarence Thomas filed a concurring opinion calling for the elimination of same-sex marriage rights. Gay rights supporters fear a ruling in favor of Ms Smith could undermine that right, marking marriages of same-sex couples as second-class unions unworthy of legal protection.
The court has already had a chance to revisit the larger issues of the Masterpiece Cakeshop case, but it dismissed appeals from a Washington state florist and Oregon bakery owners who stated that they should not be required to create works for same-sex unions.
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The decision to hear Mrs. Smith’s case was likely prompted by several factors: an increasingly assertive six-judge Conservative supermajority, a sense that Mrs. Smith’s designs were more likely to be protected by the First Amendment and the desire of at least some judges. to cancel or limit Obergefell c. Hodges, the 2015 decision establishing a right to same-sex marriage.
Ms Smith, during an interview in her modest but cheery studio in an office building in suburban Denver, sat by a plaque that echoed a Bible verse: “I am the chief work of God. She said she was happy to create graphics and websites for anyone, including LGBTQ people. But her Christian faith, she says, did not allow her to create posts celebrating same-sex marriages.
“When I chose to start my own business as an artist to create personalized expression,” she said, “I did not waive my First Amendment rights.”
Colorado Attorney General Phil Weiser countered that there is no constitutional right to discrimination. “Once you open your doors to the public, you have to serve everyone,” he said. “You can’t refuse people based on who they are.”
The court decided Masterpiece Cakeshop on an idiosyncratic ground not at issue in the new case, 303 Creative v. Elenis, No. 21-476. Justice Kennedy, writing for the majority in 2018, said Mr Phillips was treated unfairly by members of a civil rights commission who made comments hostile to religion.
Mr. Phillips’ limited victory left it unclear whether he has the constitutional right to refuse to create custom cakes for LGBTQ people. Indeed, a Colorado appeals court recently heard arguments in its appeal of a decision against him in a case brought by a transgender woman.
In the Supreme Court, Mr. Phillips had pursued claims based on his rights to the free exercise of religion and freedom of expression. Ms Smith also asked the Supreme Court to consider both of these grounds, but the justices agreed to decide only “whether applying a public accommodations law to compel an artist to speak or remain silent violates the free speech clause of the First Amendment”.
Both Mr. Phillips and Ms. Smith are represented by Alliance Defending Freedom, a conservative Christian law firm and advocacy group that has argued numerous cases for clients opposed to abortion, birth control coverage and children’s rights. homosexuals and transgender people.
Mr. Weiser, Attorney General of Colorado, said there was an important difference between the Masterpiece Cakeshop case and the news. Mr Phillips refused to serve a real couple, David Mullins and Charlie Craig, who filed a civil rights complaint, saying they had been belittled and humiliated. The details of the encounter, he said, mattered in assessing the legal issues.
Ms Smith, on the other hand, took legal action before being punished.
“It’s a made-up affair,” Mr. Weiser said. “No website has been created for a wedding. No one has been turned away. We are in a world of pure hypotheticals.
Ms Smith countered that she should not have to risk fines for exercising her rights.
“If I continue to create for marriages consistent with my beliefs, the State of Colorado intends to follow me fully,” she said. “Rather than wait to be punished, I decided to take a stand to protect my First Amendment rights. I shouldn’t have to be punished before challenging an unjust law.
The two Colorado cases differ in another way, at least in the eyes of some legal scholars, including Dale Carpenter, a law professor at Southern Methodist University. In the Masterpiece Cakeshop case, Professor Carpenter filed a brief supporting the gay couple with Eugene Volokh from the University of California, Los Angeles.
But in the new case, they sided with Ms Smith. Professor Carpenter did so, he explained in an interview, in part because he dedicated his career to the cause of promoting gay rights.
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“It seems to me that free speech has been essential to the cause of LGBT rights,” he said. “He could not have moved forward without the freedoms guaranteed by the First Amendment. I take these things to go together.
Mr Phillips’ cakes did not deserve First Amendment protection, Prof Carpenter added, but Mrs Smith’s graphics and websites do.
“Cake making is neither an intrinsic nor a traditional means of expression,” Professor Carpenter said. “People make cakes for taste or nutrition.”
Ms. Smith’s design work was different, he said. It involved, he said, “intrinsically expressive activities, including through the usual means of communication like writing or speaking.”
Kristen K. Waggoner, an attorney for Alliance Defending Freedom, agreed that the two cases were different.
“It’s an easier case than Masterpiece,” she said. “Here we have pure speech.”
David D. Cole, the legal director of the American Civil Liberties Union, which represented the couple in Masterpiece Cakeshop, said that was not the point. As long as Ms. Smith’s business was open to the public and selling a given service, he said, it had to abide by state anti-discrimination laws.
A decision in favor of Ms Smith and her company, 303 Creative, would have devastating consequences, Mr Cole said.
“If 303 Creative wins here, we’ll be living in a world where any company with an expressive service can put up a sign that says ‘Unserved Women, Unserved Jews, Unserved Blacks’ and claim a First Amendment right to do so. “, he said. “I don’t think any of us want to live in this world, and I don’t think the First Amendment forces us to live in this world.”
A three-judge split panel of the United States Court of Appeals for the 10th Circuit in Denver ruled against Ms Smith even as it accepted most of her arguments.
“Building wedding websites is pure rhetoric,” Judge Mary Beck Briscoe wrote for the majority, and Colorado anti-discrimination law requires Ms Smith and her company “to create custom websites that they don’t wouldn’t do otherwise”.
This meant, Judge Briscoe wrote, that the anti-discrimination law had to survive the most onerous form of judicial review, which required the state to demonstrate a compelling interest and show that the law was narrowly tailored to meet this interest. Judge Briscoe said Colorado had proven both.
“Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace,” Judge Briscoe wrote.
Dissenting, Chief Justice Timothy M. Tymkovich said “the majority takes the remarkable – and novel – position that the government can force Ms. Smith to produce messages that violate her conscience.”
“It seems like we’ve gone from ‘live and let live’,” he wrote, “to ‘you can’t say that’.”