Scores of businesses, religious organizations, scholars and legislators have submitted arguments to the U.S. Supreme Court in support of a Colorado bakery that declines to create custom cakes in celebration of same-sex weddings. Uniformly, they affirm that the First Amendment prevents Americans from being compelled to celebrate ceremonies they don’t support. We agree that’s a fundamental right under the Constitution. We’ve also argued there’s a practical reason for recognizing this First Amendment right — it’s a win-win for religious liberties and LGBT protections. Sound counterintuitive? We’ll explain.
Walk up to Masterpiece Cakeshop’s storefront and you’ll see the bakery’s logo combining an artist’s paint palate with a baking whisk. Like many custom cake designers, Phillips sees his work as an art form — meticulously crafting each cake through hours of sketching, sculpting and hand painting. It’s a profession that blends his “skills as a pastry chef, sculptor and painter.”
When a gay couple “requested that Phillips design and create a cake to celebrate their same-sex wedding,” Phillips politely declined, citing his religious belief that marriage is between a man and a woman. Consistent with his philosophy to serve all people but not all events, Phillips told them he was “happy to make and sell them any other baked goods.” Phillips also declines to make cakes celebrating Halloween, expressing anti-family themes, or containing hateful messages (such as disparaging LGBT people). As Phillips put it to the Supreme Court, he has “never focused on who the customer is, but on what the custom cake will express or celebrate.”
The couple found another bakery for their rainbow-themed wedding cake, yet the Colorado Civil Rights Commission found Phillips liable for unlawful discrimination. The commission forbade Phillips from making wedding cakes — 40 percent of his family income — unless he was also willing to make them for same-sex ceremonies and further ordered Phillips to re-educate his staff, nearly all of whom are family.
In defense of Phillips, numerous arguments have been lodged with the Supreme Court. A group of religious organizations argues the Supreme Court’s recognition of a same-sex couple’s liberty “to define and express their identity” should also be extended to wedding professionals with religious objections to same-sex marriage — both should “have the same liberty to live consistently with their identity.”
A group of federal legislators draws attention to the oddity of insisting that the ceremonial centerpiece of a modern wedding — the couple’s cake — be crafted unwillingly by a baker with moral objections to the marriage, observing it’s a well-recognized “social faux pas, if not a social horror” to loudly object to a couple’s wedding in the middle of the ceremony on “their day.” A group of legal scholars points out the First Amendment should similarly prevent a gay florist from being forced to decorate a conference opposing same-sex marriage, an African-American baker from being compelled to fill an order for a “Black Lives Don’t Matter” event, and a fashion designer from being punished for refusing to make a dress for a presidential inauguration she opposes.
Our argument stresses a more practical point: Since state courts first began using public accommodations laws to punish wedding professionals with objections to same-sex marriages, state legislatures stopped passing such legislation, leaving millions of LGBT without protections.
Over a period of three decades, from 1977 to 2009, 21 states and the District of Columbia enacted legislation prohibiting sexual orientation discrimination in places of public accommodation. But all of that changed after a New Mexico trial court found Elane Photography violated the state’s human rights statute by declining to photograph a same-sex commitment ceremony. In the eight years since then, no state has passed similar legislation.
Idaho is illustrative. After attempts for nine years to introduce a bill, the Idaho House heard 21 hours of public testimony. One legislator who was visibly moved by the stories of “discrimination, harassment and violence” promised to be “kinder” and “more compassionate.” Nevertheless, he and others voted down the bill because they “worried that in trying to outlaw discrimination, the bill would force religious-minded florists, bakers, photographers and others to violate their convictions about homosexuality or face lawsuits for refusing gay customers.”
There is now a deep divide across America. In states prohibiting sexual orientation discrimination, wedding professionals who generally serve LGBT people but specifically decline to service same-sex weddings must choose between their livelihoods and their conscience. Similarly troubling, in the many states without any LGBT protections, customers can be turned away for simply being gay. Thus, a Texas waitress can, with impunity, tell a couple “we don’t serve [gays] here,” an Indiana restaurateur can lie to his would-be gay patrons that the equipment in his restaurant is broken when it isn’t, and a Tennessee hardware store can post a “No Gays Allowed” sign in the front window.
Contrary to this current state of affairs, most Americans favor compromise. A strong majority agrees no one should be denied services for being gay but also agrees wedding professionals should be permitted to decline services in celebration of same-sex weddings. It’s a reasonable compromise that respects the unique identity of diverse Americans.
The Supreme Court can strike that balance by recognizing Phillips’ First Amendment rights without invalidating public accommodation laws more generally. If the court does so, we believe more states would be willing to pass antidiscrimination legislation for millions of LGBT. And that’s a win-win for both LGBT people and religious liberties — an event we can all celebrate.
Michael Erickson is an attorney in Salt Lake City. Bill Duncan is director of the Sutherland Institute's Center for Family and Society. They authored an amicus brief to the U.S. Supreme Court on behalf of 22 of 24 Utah Senate Republicans in support of Masterpiece Cakeshop.