‘Licence to discriminate’: US watching same-sex wedding cake Supreme Court case closely
The US Supreme Court will today hear arguments as to why a baker should, or shouldn’t, be able to legally refuse to bake a cake for a same-sex couple.
It’s the formal debate Australia appears to have avoided — as the mooted Senate amendments advocating for such exemptions in the same-sex marriage bill were scrapped last week.
But in the US, the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission is being watched closely, and its outcome may have major reverberations for civil rights across the country.
Two guys, a mum and a cake shop
Charlie Craig and David Mullins had been seeing each other for years before they decided to tie the knot in 2012.
Same-sex marriage wasn’t legal at that stage in their native Colorado — though it is now — so they headed a few thousand kilometres east to Massachusetts to say their vows.
They still wanted to have a celebration at home with friends and family, so the couple went to a local cake shop in Denver with Charlie’s mum Debbie to order a custom cake.
That visit triggered five years of legal proceedings, culminating in this week’s Supreme Court hearing.
On learning that the cake would be in celebration of their marriage, the owner of the Masterpiece Cakeshop, Jack Phillips, told David and Charlie he didn’t sell wedding cakes to same-sex couples.
“They were stunned to have it put so bluntly to their face,” said James Esseks, director of the American Civil Liberties Union (ACLU), who represents the couple.
“Charlie was humiliated in front of his mother. His mother felt awful to see how her son was treated.
“They walked out of the shop, thinking there was nothing they could do — because that’s just the way life is.”
Incensed by their treatment, Charlie’s mum called the baker the next morning. He reiterated that because of his religion (Mr Phillips is a Christian) he would not sell wedding cakes to same-sex couples.
Colorado’s 100-year-old civil rights laws, updated 10 years ago to include discrimination on the basis of sexuality, apply to any businesses that are open to the public.
The couple took their case to the Colorado Civil Rights Division, where they won. Mr Phillips appealed, but the decision was upheld.
A love Supreme
Masterpiece Cakeshop has now taken the matter to the US Supreme Court, which will today begin hearing oral arguments from both sides.
Mr Phillips and his defence contend that the interpretation of the Colorado civil rights laws violates his First Amendment right to free speech and freedom of religion.
He points to a 1964 Supreme Court case, where a South Carolina barbecue restaurant refused to serve black customers.
“When they got sued for discrimination, they said ‘it’s part of our religion to say that the races don’t mix — you can’t apply the civil rights law to us’,” he said.
“The Supreme Court had none of it. They said that is not a defence to a civil rights claim. You have freedom of religion, you can act on those beliefs, but not when it harms other people. It’s not a licence to discriminate.”
In September, the Trump administration’s Department of Justice filed a friend-of-the-court brief in support of Mr Phillips’ case, arguing that forcing him to bake wedding cakes for same-sex couples would be a violation of his First Amendment rights.
Mr Phillips is also expected to argue that his high-end cakes are a form of artistic expression, and he should not be forced to compromise his views on those grounds.
“It’s a central piece of his argument,” Mr Esseks said.
“He says he uses his creativity to make these creations in butter, flour and sugar and ‘you can’t compel me to speak using my artistic talents to celebrate something that I disagree with’.”
Mr Esseks argued the state was not forcing Mr Phillips to say or make anything.
“He has decided to open a business that’s open to the public, he has decided to make wedding cakes,” he said.
“Once he’s done that, he does not have the freedom to decide whether to sell it to straight people or gay people. If I’m going to sell a wedding cake, I have to sell it to everybody.
“I can’t say I’m going to sell it to white people and not black people, I can’t say I’m going to sell it to Christians and not Muslims, or straight people but not gay people.”
Mr Esseks said he was confident his clients’ case will prevail, but was also deeply concerned over what a negative ruling for David and Charlie might bring.
“I worry about what the world looks like if the bakery prevails,” he said.
“This would be a massive sea change of how civil rights laws function in this country … a ruling for the bakery would give a licence to discriminate.”