A Colorado ‘cake artist’ bakes up a big First Amendment case for Supreme Court

WASHINGTON – A self-described Colorado “cake artist” who refused to bake a wedding cake for a same-sex couple has served up a potential Supreme Court blockbuster pitting freedom of speech and religious liberty against equal-treatment guarantees.

With rookie Justice Neil Gorsuch on board, the high court said Monday that it would consider the highly anticipated First Amendment case in the term that starts in October. The dispute arises from Gorsuch’s home state, and will provide an early test for how the conservative newcomer balances competing values.

The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, will also provide an important test for how the court’s slim and reconfigured conservative majority will handle tricky First Amendment claims in the context of the 2015 decision upholding a constitutional right to same-sex marriage.

Almost certainly, the case is the first in which lawyers petition the Supreme Court with citations from “The Essential Guide to Cake Decorating.”

“Cake making dates back to at least 1175 B.C.,” attorneys for the Denver-based cake artist, Jack Phillips wrote. “Of any form of cake, wedding cakes have the longest and richest history.”

As is customary, the court did not issue a written explanation for the decision to grant the petition and hear Phillips’ appeal. Meeting in a private conference, at least four of the nine justices must agree to hear a case. The votes from the conference are typically not made public.

The announcement resulted from the private conference conducted Thursday morning.

Phillips brought the case after an administrative law judge and the Colorado Civil Rights Commission concluded he had violated the state’s anti-discrimination statute when he turned down wedding-cake business from David Mullins and Charlie Craig. In July 2012, before the Supreme Court issued its landmark same-sex marriage ruling, the couple was planning their wedding reception.

Phillips told the couple he could bake something, but not a wedding cake.

“Because of the artistry associated with custom cakes, Phillips . honors God through his work by declining to use his creative talents to design and create cakes that violate his religious beliefs,” lawyers for Phillips wrote.

Citing those same religious beliefs, Phillips’ attorneys noted that “he declines lucrative business by not creating goods that contain alcohol or cakes celebrating Halloween and other messages his faith prohibits, such as racism (or) atheism.”

Phillips is represented by Alliance Defending Freedom, whose attorneys are also representing Missouri-based Trinity Lutheran Church in its challenge to the state’s refusal to provide the religious organization with a playground grant. In an oral argument April 19, Gorsuch and other justices sounded sympathetic to the Missouri church’s claims.

In the cake case, the Colorado Civil Rights Commission rejected Phillips’ argument that the state was trying to compel him to communicate a particular message, contending that Phillips “acted not based on the design of the requested cake or the message it might have conveyed, but based on a blanket policy of refusing to sell a wedding cake of any kind to any same-sex couple.”

“The fact that the company was ostensibly willing to provide other goods to the couple did not cure its discriminatory refusal to provide a wedding cake, a good it otherwise offered to the general public,” attorneys for Mullins and Craig wrote.

A date has not yet been set for the oral argument.