Same-Sex Wedding Cake Row Served to SCOTUS

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By Patrick Gregory and Melissa Heelan Stanzione

A Colorado baker who refused to make a cake for a same-sex wedding on religious grounds will get to challenge the state’s anti-discrimination law at the U.S. Supreme Court, after it granted review June 26 ( Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, U.S., No. 16-111, granted 6/26/17 ).

The outcome could affect a wave of lawsuits involving religious freedom and discrimination issues, which have gained national attention after the Supreme Court’s 2015 decision that the right to marry extends to same-sex couples, in Obergefell v. Hodges.

The case was relisted on the court’s list of cases it considers at its private conferences 18 times, fueling speculation among courtwatchers about the delay.

When the court relists a case once or twice, the court is more likely to agree to hear the case, but numerous relists generally indicate one or more of the justices is preparing an opinion to go along with a refusal to hear the case. A string of relists can sometimes precede an unsigned opinion from the court as well.

These cases—including the court’s June 26 decision in Pavan v. Smith—represent the “backlash” that has happened since Obergefell and Windsor, Jeffrey S. Trachtman, an attorney with Kramer Levin Naftalis & Frankel LLP, told Bloomberg BNA.

There’s been a bureaucratic resistance to the holdings, resulting in a “nibbling away at the fringes of full marriage rights,” Trachtman said.

In Pavan, the Supreme Court held that Arkansas laws that prohibited married, same-sex parents from being listed on their children’s birth certificates, while requiring that married, opposite-sex parents be listed contradicted its holding in Obergefell.

In United States v. Windsor, the Supreme Court struck down the federal Defense of Marriage Act’s definition of “marriage” as only between a man and a woman.

Free Speech Violation

The case focuses on a person’s free speech right not to be compelled by the government to speak a message they disagree with, David A. Cortman, senior counsel and vice president of U.S. litigation with Alliance Defending Freedom, told Bloomberg BNA.

ADF represents the petitioners in the case.

This principle applies to everyone, not just people of faith, Cortman said.

The petitioners argue that the First Amendment’s right to free speech and free exercise of religion prohibits the government from forcing them to create speech with which they disagree on religious grounds.

But the Colorado Civil Rights Commission argues that the petitioners “acted not based on the design of the requested cake or the message it might have conveyed, but based on a blanket policy” of discrimination.

“Privately held religious views are entitled to respect, but they do not give people running businesses the right to exclude black people from a lunch counter, deny Muslims a hotel room, or refuse to cater an interracial wedding,” Trachtman said in an email.

It’s no different for same-sex couples, he said.

If you’re running a public accommodation like a catering hall or a bakery, “you’re in the mix of commerce” and subject to regulations, including non-discrimination regulations, Trachtman told Bloomberg BNA.

You’re serving the public, not speaking, he said.

Baking vs. Speaking

The dispute centers on whether the baker’s cake-making warrants First Amendment protection as a form of expression.

The Colorado Court of Appeals below didn’t think so. It affirmed a finding that Masterpiece Cakeshop and its owner, Jack Phillips—the petitioners here—illegally discriminated against the same-sex couple who wed in 2012 by refusing to make a cake for their wedding.

Phillips is a “cake artist,” Kerri Kupec, communications director and legal counsel for ADF, said in October. His work was even displayed in ads for the “Cake Boss” television show, she said.

The issue is how much speech content is involved, Trachtman said.

“Just baking a cake isn’t speech,” he said.

To contact the reporters on this story: Patrick Gregory in Washington at pgregory@bna.com; Melissa Heelan Stanzione in Washington at mstanzione@bna.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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