Whether a Wedding Cake Is a Right Under Review in Colorado

The Supreme Court has not yet
decided whether it will take up the case of
Elane Photography v. Willock, which asks whether a wedding
photographer’s personal religious opposition to recognizing
same-sex marriage can be used to deny her services to a gay
couple.

In the meantime, a similar case has reached the courts in
Colorado. An owner of a bakery in Lakewood appeared before a judge,
accused of discriminating against a gay couple for refusing to bake
them a wedding cake. KDVR in Denver interviewed both sides of the
case. Dave Mullins and Charlie Craig, who got legally married in
New York, wanted Jack Phillips to make a wedding cake for them in
Colorado.
Phillips said no:

“Being discriminated against is a form of personal invalidation.
It’s being degraded and put on a lower level than other people in
society,” says Mullins about how humiliated he and Craig felt
on July 19, 2012, when Phillips of Masterpiece Cakeshop told them
his business doesn’t make cakes for gay weddings. Phillips says
Colorado doesn’t recognize same-sex marriages. And also that
they’re (gay relationships) against his religious beliefs.

“I am a follower of Jesus Christ. So you could say it’s a
religious belief. I believe the Bible teaches it’s not an OK
thing,” is what Phillips told us last July.

The American Civil Liberties Union says it’s illegal for a
private retail business open to the public to exclude
customers–only private religious groups, like churches, have this
right.

“It happened with race discrimination back in the day. It
happened with sex discrimination. Over and over the courts say,
‘No, your religious beliefs, while important, do not trump
discrimination laws,” says ACLU attorney Amanda Goad, who flew in
from NYC to represent the couple.

But Phillips’ lawyer says creating cakes for gays not only
violates his freedom of religion, but his freedom of speech.

“Everyone can agree weddings carry a certain message: spiritual,
cultural, symbolic … and because it carries a message, under the
First Amendment he (Phillips) has the right to say it or not say
it,” says attorney Nicolle Martin.

Both Jacob Sullum and I have
written about these kinds of cases previously. Sullum expressed
his
disappointment in November that the ACLU has set aside its
mission by supporting discrimination laws that actually violate
Constitutional protections.

Put me on the record arguing that nobody has a right to force a
privately-run bakery to make them a cake, regardless of what the
cake says (and, I guess, regardless of what the law says). However,
I’m not sure it’s a compelling argument that passing along somebody
else’s speech by writing it on a cake in frosting counts as an
endorsement and therefore can violate somebody’s free speech
rights. There are, though, plenty of cases where a printer has
declined to publish magazines or pamphlets or other writings or
images that offended them or they found disagreeable.