Jacquelyn Martin, AP
Janae Stracke, left, and Annabelle Rutledge, both with Concerned Women for America, hold up signs in support of cake artist Jack Phillips outside of the Supreme Court which is hearing the 'Masterpiece Cakeshop v. Colorado Civil Rights Commission,' Tuesday, Dec. 5, 2017, in Washington. (AP Photo/Jacquelyn Martin)

SALT LAKE CITY — The Supreme Court is expected to rule sometime this month on its controversial wedding cake case, determining what right should win out when free speech and religious exercise protections clash with nondiscrimination protections for the LGBT community.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission asks whether a Christian baker, Jack Phillips, can refuse, for religious reasons, to design and provide a wedding cake for a gay couple. Phillips considers cake decoration to be a form of expression protected by the First Amendment, arguing that Colorado cannot force him to express support for same-sex marriage.

The ruling will affect dozens of ongoing lawsuits filed in the wake of same-sex marriage legalization in June 2015. It could determine if it's possible to protect the rights of members of the LGBT community and religious objectors to same-sex marriage at the same time.

"This case is about much more than wedding cake. It is about the rightful place of LGBT people and their families in the commercial and public sphere," wrote a group of legal scholars arguing in favor of the gay couple, Charlie Craig and David Mullins.

But it's also about the rightful place of conservative, religious Americans in that same sphere, according to the scholars and advocacy organizations that filed briefs in favor of the Christian baker. They point to the Supreme Court's ruling on same-sex marriage, which urged tolerance for all.

"The problem is not the existence of a multiplicity of good faith views about marriage, but rather the enshrining of a single view into law which can be used to demean, stigmatize and exclude those who do not accept it," argued the brief filed by the Becket Fund for Religious Liberty.

Despite what's at stake in the Supreme Court's ruling, the justices may choose to send the case back to the Colorado Civil Rights Commission for further consideration. In that situation, many difficult questions would remain unanswered.

Case background

Phillips appealed to the U.S. Supreme Court after an administrative law judge, the Colorado Civil Rights Commission and the state's court of appeals rejected his arguments, ruling that selling a cake is a type of conduct, not expression. The Colorado Anti-Discrimination Act prevents business owners from discriminating against potential customers because of sexual orientation.

The baker's supporters believe refusing to provide a wedding cake, which is part of a major religious event, is different than refusing to serve members of a protected class. They say it's possible to protect a Christian baker and gay couple at the same time, noting the justices emphasized the value of compromise and understanding in their 5-4 ruling legalizing same-sex marriage in 2015.

The gay couple's supporters, on the other hand, assert that no one should be denied services because of who they are, highlighting the routine and painful discrimination that members of the LGBT community face. They say a ruling against Craig and Mullins would undermine nondiscrimination laws nationwide.

During oral arguments on Dec. 5, the Supreme Court justices confirmed legal analysts' sense that there are no easy answers in this case. Justices were unsure how to distinguish artistic expression from regular sales of goods, and whether it's possible to create straightforward, faith-based exemptions for religious objectors to nondiscrimination laws.

“The reason we’re asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law,” said Justice Stephen Breyer, noting that a broad ruling in favor of the baker could create "chaos."

Justices wondered whether photographers, makeup artists, architects and other artistic professionals also need exemptions from nondiscrimination laws. They emphasized the need to respect religious business owners like Phillips, as well as members of the LGBT community.

“Tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual,” Justice Anthony Kennedy said.

Potential outcomes

If the Supreme Court rules for the gay couple, it would affirm that Colorado's interest in ending anti-LGBT discrimination trumps religious objections to same-sex marriage. The ruling could also reject the idea that baking and decorating a wedding cake constitutes speech.

This result wouldn't stop the Supreme Court from taking up future cases related to religious service refusals, since the justices could view photography or arranging flowers as more expressive than decorating a cake.

If the Supreme Court rules for Phillips, the justices would have to outline when free speech or free exercise concerns should overrule nondiscrimination protections. They wouldn't provide an answer for every potential conflict, but the ruling would help guide future legislative and legal actions.

"There would be ongoing litigation over many years," as lawmakers, activists and judges worked to understand the contours of the ruling, said James Esseks, director of the American Civil Liberties Union's LGBT and HIV Project, on a May 31 press call.

1 comment on this story

The Supreme Court could also send the case back to the Colorado Civil Rights Commission because of issues with the process through which the commission came to its decision. During oral arguments, Justice Kennedy appeared concerned that one of the commissioners had an anti-religious bias.

"Suppose we thought there was a significant aspect of hostility to a religion in this case. Could your judgment stand?" he asked Colorado Solicitor General Frederick Yarger.

No matter how the Supreme Court rules, the Masterpiece Cakeshop case is only the beginning of high-profile battles over religious service refusals. Dozens of lawsuits related to this case are working their way through lower courts across the country, as the Associated Press reported.