NEW YORK – When Jack Phillips opened Masterpiece Cakeshop in Lakewood, Colorado, twenty-four years ago, he chose the name because it conveyed both the artistic vision behind his cakes, as well as the Gospel of Matthew where Christ says no man can serve two masters.
After refusing to make a case for a gay marriage in 2012 because it would violate his belief in traditional marriage, the Colorado Civil Rights Commission ordered that he must bake cakes for any wedding request. Phillips instead decided to stop baking wedding cakes all together, resulting in a 40 percent loss of his business income, and on Tuesday, the United States Supreme Court will hear his case which will determine whether he has the right to object to baking cakes for certain events.
In one of the most closely watched cases this term, Masterpiece Cakeshop v. Colorado Civil Rights Commission, there will be significant First Amendment implications. Phillips, who is represented by Alliance Defending Freedom, argues that his cake is a work of art and it would be a violation of not only his faith, but also his freedom of expression to bake a cake for an event that he believes is wrong. Others, however, disagree: They argue that by refusing to bake a cake for a gay couple, Phillips is participating in unjust discrimination, which could set a dangerous precedent, not just for businesses but for other essential service providers.
In an interview with Crux, Helen Alvaré, professor of Law at the Antonin Scalia Law School at George Mason University and longtime advisor to the U.S. Catholic bishops, said that Catholics in particular should pay attention to this case, as there are serious religious liberty considerations at stake.
“This is the culmination of the attempt to claim that every advance to religious freedom is a loss for homosexual individuals or same-sex couples,” said Alvaré.
According to Alvaré, baking a cake for an event in which one fundamentally objects to its message or meaning would be a form of cooperation, which Catholic moral theology views as illicit.
“If people who are running businesses, including creative businesses, are mandated to cooperate in same-sex unions, this really runs afoul of Catholic understanding of cooperation,” said Alvaré.
“What you’re really talking about here in cooperation of same-sex marriage is the state publicly authorizing a union, and it’s really a celebration of the union. The court said in Obergefell that there is no difference between the ability to procreate and not to,” Alvaré continued.
In 2015, in Obergefell v. Hodges, the Supreme Court ruled that there is a constitutional right to same-sex marriage.
“The state does not prefer the creation of children over its impossibility, and the state does not prefer a family situation where the child can know and be known by his or her parents versus a family situation which in every case a child will be separated from one or both parents. To ask a citizen to cooperate with a celebration of same-sex marriage means the citizen is cooperating with this public meaning of marriage,” Alvaré told Crux.
Meanwhile, Floyd Abrams, the leading First Amendment lawyer in the United States who signed an amicus brief in support of the gay couple in this case, disagrees with Alvaré and told Crux that Catholics should be wary of any case in which discrimination is allowed.
“Religious organizations, not limited to Catholic ones, ought to be concerned about a contrary ruling, that is to say, if somebody won’t bake a cake for a Catholic wedding and has a shop open to the public for the purchase of cakes, that sort of religious discrimination cannot be countenanced in our society and would violate anti-discrimination laws,” said Abrams.
Abrams maintains that baking and selling a cake is a product for consumption, not an endorsement of an event, which would present a different consideration.
“If the facts of that case were ones involving compulsory conduct which amounts to an endorsement of gay marriage, that would violate both elements of the First Amendment, freedom of religion and freedom of speech, because I don’t think that sort of compelled speech can be deemed consistent with the First Amendment,” said Abrams.
Alvaré, however, argues that cakes do carry messages, and to force someone to participate in the creation of that message violates the First Amendment.
“In addition to the ring, the wedding cake has become the tangible item that is expressive,” said Alvaré. “For some couples, it’s like a Broadway production.”
Many Catholics have warned that if the Court rules against the baker, it would set a dangerous precedent where religious institutions would be forced to either recognize or perform same-sex marriages.
Abrams told Crux that such a move would be a clear violation of the First Amendment and is a very different consideration than this particular case.
“Any effort to compel a religious institution to conduct services of a particular sort or to recognize marriages which are inconsistent with their deeply held beliefs would violate the First Amendment,” said Abrams.
In an amicus brief, the United States Conference of Catholic Bishops joined with several other national Catholic organizations in support of the baker and urged the Court to protect his religious convictions.
“When the government is allowed to penalize an individual’s conscientious refusal to participate in what he considers to be a religious ceremony, it wounds the First Amendment and pluralism,” they argued. “The First Amendment, properly construed, protects religiously motivated individuals and organizations who seek to discern the truth and then act on it, including in the public square.”
Following oral arguments on Tuesday, the Supreme Court will rule on the case by the end of the term, in June 2018.