A Supreme Court Clash Between Artistry And The Rights Of Gay Couples A baker says being forced by Colorado law to make wedding cakes for same-sex couples would violate his First Amendment rights. The couple says the baker can't discriminate against them.


A Supreme Court Clash Between Artistry And The Rights Of Gay Couples

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A baker refused to make a cake for a same-sex wedding. And now that case is before the U.S. Supreme Court. On one side is the state of Colorado and its public accommodations law barring discrimination against customers based on their race, religion, gender or sexual orientation. And on the other side is a baker who is morally opposed to same-sex marriage and refuses to create cakes for same-sex wedding receptions. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: There's no dispute about the facts of the case. Charlie Craig and Dave Mullins were organizing a wedding reception for themselves in Lakewood, Colo. and were referred by their wedding planner to the Masterpiece Cakeshop, known in particular for its wedding cakes. When Mullins, along with Craig and his mother, arrived at the shop, the owner of the bakery, Jack Phillips, greeted them politely. But as soon as he realized who the wedding cake was for...

JACK PHILLIPS: Right away I knew this is not a cake that I can make.

TOTENBERG: Dave Mullins has the same recollection.

DAVE MULLINS: He immediately informed us that he would not make a cake for a same-sex wedding.

TOTENBERG: Phillips believes that same-sex marriages are sinful.


PHILLIPS: I don't believe that Jesus would have made a cake.

TOTENBERG: As Phillips put it on ABC'S "The View"...


PHILLIPS: I'm not judging these two gay men that came in. I'm just trying to preserve my right as an artist to decide which artistic endeavors I'm going to do and which ones I'm not.

TOTENBERG: That, however, was not how Charlie Craig felt.

CHARLIE CRAIG: Man, I mean, it was just really - it was - I mean, it was just humiliating.

TOTENBERG: His mother, Deborah Munn, remembers the silence in the car afterwards.

DEBORAH MUNN: I could see my son's shoulders were starting to shake. He had broke down, and he was crying. I could not believe that a business owner, someone who makes pastries, could simply turn someone away because of who they are.

TOTENBERG: As the wedding couple would soon learn, Colorado, like most states, has an antidiscrimination law for businesses that are open to the public. Colorado's bars discrimination based on race, religion, gender and sexual orientation. So Mullins and Craig filed a complaint with the State Commission on Human Rights, which ruled in their favor, as did the state Supreme Court. The baker, Jack Phillips, appealed to the U.S. Supreme Court, which hears arguments in the case today.

The Supreme Court for a half-century has ruled against people who claim that their sincerely held beliefs prevent them from serving customers on an equal basis. In this case, Jack Phillips argues that the couple could have bought any premade cake in the bakery's cooler, but he was not willing to use his artistry as a cake creator to further a cause he is opposed to, namely gay marriage.

KRISTEN WAGGONER: Wedding cakes have played an iconic role in American culture and in religious life.

TOTENBERG: Kristen Waggoner of the Alliance Defending Freedom is arguing Phillips' case at the Supreme Court.

WAGGONER: The First Amendment protects the right of all Americans to decide what they will express and when they will remain silent. So it's fundamentally different than saying to someone, I will not serve you just because of who you are. This is about the message.

TOTENBERG: All agree there was no discussion of any writing or actual message on the cake. The message, Waggoner contends, is the fact that this is a cake announcing a same-sex wedding. And even if Mullins and Craig wanted a simple, three-tiered white cake without writing, the First Amendment, she says, protects Jack Phillips' artistic and religious right not to create it. The state of Colorado disagrees, backed by leading First Amendment lawyers, who argue the case is not about freedom of speech. Here, for instance, is First Amendment advocate Floyd Abrams.

FLOYD ABRAMS: It's no different conceptually than if an artist offered to paint people at a gallery for a fee but refused to paint black people. That cannot be sustained under a First Amendment claim.

TOTENBERG: David Cole of the ACLU represents Dave Mullins and Charlie Craig.

DAVID COLE: We're not asking Mr. Phillips to alter the content of anything that he produces. We're asking for the same product that he would sell to a straight couple.

TOTENBERG: Cole adds that businesses can refuse to create a message they oppose as long as the refusal is not based on the identity of the customer. A bakery could refuse to put a racist message on a cake or a sexually explicit message or, for that matter, a message endorsing gay marriage.

COLE: The problem here is that Jack Phillips and Masterpiece Cakeshop would make the exact same wedding cake and sell it to a straight couple but refuse it to a gay couple. That's not free speech. That's discrimination.

TOTENBERG: In this case, needless to say, the wedding couple did not go cake-less. A different baker, Lora's Donuts & Bakery Shop, on hearing of their experience, volunteered to make them a wedding cake in rainbow colors. As for Jack Phillips, he's given up creating wedding cakes in order to comply with the Colorado law and stay in business. But he estimates that he's lost 40 percent of his work and says he's laid off more than half of his employees. Ultimately though, this case is about more than wedding cakes.

It's about what if any exception, in this case free speech, is permissible under a broad antidiscrimination law that treats every commercial business in the same manner, laws governing everything from health and safety to employment. The late Justice Antonin Scalia, a conservative icon, once wrote that regardless of an individual's conscientious religious scruples, he must comply with an otherwise valid law that is neutrally applied to all. The citizens who disagree must still obey laws that make polygamy illegal or laws that compel the payment of taxes for programs that the individual may disagree with.

To do otherwise, said Scalia, would be to make each individual a law unto himself. A decision in the wedding cake case is expected by June, the month most associated with weddings. Nina Totenberg, NPR News, Washington.

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