Speech with Cake Fills Up The Supreme Court

Free Speech and Licensing rules and rights Fills The Supreme Court Schedule this season

In the pantheon of Supreme Court challenges, few have produced the outpouring of support and opposition as has Colorado baker Jack Phillips' refusal to design a wedding cake for a same-sex couple.

Over the past two months, the high court has been flooded with nearly 100 legal briefs, equally divided between the two sides, that raise lofty legal arguments about free speech and religious liberty, equal rights and anti-discrimination laws.

Only three issues in recent years come close to engendering as much emotion at the court as the continuing battle over same-sex marriage, now focused on a single cake that never got made: Abortion. Affirmative action. And the Affordable Care Act, or Obamacare.

“This case is not about the cake. It is about licensing discrimination,” says James Esseks, LGBT project director at the American Civil Liberties Union, which is representing Charlie Craig and David Mullins in their fight with Phillips.

Kristen Waggoner, senior vice president at Alliance Defending Freedom, which represents the baker, is ready for battle as well. "Marriages, weddings, are uniquely different," she says, noting that Phillips "often attends that ceremony."

Those two groups will argue the case before the justices next month, but they're not alone in making their views known. In early September, some 50 groups filed legal papers in support of Phillips. This week, an equal number flooded the court with support for the gay couple. Both sides can claim backing from states and municipalities, senators and House members, businesses and religious groups. 

Even bakers are divided. A group of "cake artists" from across the country weighed in along with Phillips' backers two months ago, although they claimed neutrality. They said their work, like his, "requires artistic exertion within an expressive endeavor to generate works of art" — and they included images of their work.

A separate group of chefs, backers and restaurateurs chimed in on Monday, including Anthony Bourdain, host of Parts Unknown on CNN, and Sam Kass, an assistant chef in President Barack Obama's White House. 

"Even when prepared by celebrated chefs, food retains a clear purpose apart from its expressive component," they wrote. "It is made to be eaten."

The debate in Masterpiece Cakeshop v. Colorado Civil Rights Commissioncomes down to this: Can state and federal laws compel merchants to serve any and all customers? Or do constitutional rights of free speech and religious liberty allow for exemptions? 

Parades and Boy Scouts

Those on Phillips' side include a star witness: the Trump administration, which contends that designing wedding cakes is a form of expression protected by the First Amendment. Newly confirmed U.S. Solicitor General Noel Francisco will argue the case alongside Waggoner.

"When Phillips designs and creates a custom wedding cake for a specific couple and a specific wedding, he plays an active role in enabling that ritual, and he associates himself with the celebratory message conveyed," the Justice Department argues.

The administration and others on Phillips' side emphasize two Supreme Court precedents. In 1995, the court ruled that St. Patrick's Day parade organizers had a right to exclude gay and lesbian participants. In 2000, it ruled that the Boy Scouts could exclude gays as troop leaders. In both cases, the court said the groups could not be forced to alter their messages. 

Eighteen states, led by Texas, argue that's a form of commandeering. "No government — even one with the best of intentions — may commandeer the artistic talents of its citizens by ordering them to create expression with which the government agrees but the artist does not," their brief says.

The National Organization for Marriage, which played a leading role in fighting same-sex marriage at the Supreme Court in 2013 and 2015, cites other instances in which the high court has protected the right to exclude speech.  

"Newspapers cannot be forced to print messages from those they criticize," the group says in legal papers. "Car owners cannot be forced to display political messages, children cannot be forced to recite the Pledge of Allegiance, parades cannot be forced to include other viewpoints, utilities cannot be forced to include brochures for consumer advocates in the utility’s billing envelope, and government workers cannot be forced to even pay for the political speech of labor unions."

Other groups go so far as to say that Phillips' right to earn a living is jeopardized. He stopped making wedding cakes rather than serve same-sex marriages, eliminating about 40% of his business at the time. 

Eleven Republican U.S. senators and 75 House members wrote that Americans would be forced to make "a choice between their conscience and their livelihood." The result, the Family Research Council said, would be "an unconscionable inequality where people who hold traditional marriage beliefs are excluded from owning a public business."

'It happens everywhere'

For those who defend Colorado's anti-discrimination law — one of 22 such laws across the country that protect gays and lesbians from unequal treatment — the case is akin to the battle over the Civil Rights Act of 1964.

"I remember the signs saying 'Whites only' and 'Colored only,'" says Rep. John Lewis, D-Ga., who marched and was severely beaten during the civil rights movement. He's among 211 House and Senate Democrats who argue in court papers that laws like Colorado's protect minorities from "the indignity and humiliation that comes from being denied service on a discriminatory basis."

Examples of indignity and humiliation are laid out in legal papers submitted by Lambda Legal Defense and Education Fund, a gay rights group that detailed discriminatory actions from birthing classes to funeral homes and from tax preparers to tow truck drivers.

"It happens everywhere," says Rachel Tiven, the group's CEO. "It isn’t limited to cake bakers and wedding photographers.”

If Phillips can refuse to make a wedding cake for a gay couple, the American Bar Association says, even legal advice could be dubbed expressive.

The NAACP Legal Defense and Educational Fund cites the high court's 1968 ruling in Newman v. Piggie Park Enterprises, in which the justices unanimously rejected a barbecue chain's effort to exclude African Americans. 

"There is no limiting principle that would permit exemptions for 'artistic' or 'custom' products without eviscerating public accommodations law," the group says.

In response to arguments that Phillips has a free speech right to refuse his services because of his religious beliefs, First Amendment expert Floyd Abrams and others say that does not extend to the marketplace. 

"The Colorado statute ... regulates the conduct of selecting customers," their brief says. "When an artist sells a message, he must take all comers."

And business groups on the gay couple's side say that's ultimately good for business. They include Apple and Amazon, Cisco and Intel, Uber and Lyft, as well as a coalition of small businesses.

"Study after study shows that businesses — and small businesses in particular — suffer considerable negative economic consequences when operating under laws that permit discrimination," the Main Street Alliance says.

Richard Wolf, USA TODAY