The Supreme Court Gets Its First Test of Gay Rights Since 2015

By Greg Stohr, Bloomberg Businessweek

When the U.S. Supreme Court reconvenes on Oct. 2, it will begin a term full of potential blockbuster cases. Disputes over partisan gerrymandering, cell phone privacy, and Donald Trump’s travel ban are already on the docket. Showdowns over public-sector union fees, antigay job discrimination, and voter-ID laws might be close behind. Out of all of them, the case that could be the most passionately fought is one that began as a brief discussion about a wedding cake in Colorado and has grown into a Supreme Court clash between free speech and equality.

On one side are Charlie Craig and David Mullins, a couple who visited Masterpiece Cakeshop Ltd. outside Denver in 2012 only to be told the bakery didn’t make cakes for same-sex weddings. They say equality demands they get the same service as opposite-sex couples. On the other is the bakery’s owner, Jack Phillips, who says he reads the Bible as forbidding same-sex marriage and shouldn’t be forced to go against his religion.

Phillips told Craig and Mullins he’d bake them anything but a wedding cake.

It will be the first major gay-rights case the high court has heard since it legalized same-sex marriage in 2015. “There’s a collision that’s been occurring, really building for decades, between anti-discrimination law and free speech,” says Jonathan Turley, a constitutional law professor at George Washington University. The Colorado Civil Rights Commission said Phillips violated state anti-discrimination laws and ordered him to sell cakes for gay weddings or stop making them altogether. He chose the latter and says he’s lost 40 percent of his business.

Phillips’s lawyers are focusing on his First Amendment speech rights. They say cake decorating is an expressive activity, creating something that becomes a wedding’s focal point. Phillips says “a cake actually symbolizes a man and a woman in unity with God.” But Craig and Mullins say Colorado’s regulation targets conduct, not speech, effectively putting it outside the ambit of the First Amendment. “If you’re open to the public, and you make that commitment, and you’re a public business, then you have to serve everyone on equal terms,” Craig says.

That argument worked a half-century ago when the Supreme Court said businesses had to comply with the 1964 Civil Rights Act and its prohibition against racial discrimination. In 1968 the court unanimously said it was “patently frivolous” for a South Carolina sandwich shop to try to claim a religious exemption. “We forget, I think at our peril, that religion was the reason that they would not serve African Americans,” says Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund.

A win for Phillips could have far-reaching ramifications.

It would almost certainly apply to other wedding vendors whose work involves expression, including florists, musicians, and photographers. The Trump administration, which is backing Phillips, says the decision should stop there, but the court could go further, perhaps providing an opening for restaurant owners and limousine drivers who don’t want to appear to be endorsing same-sex marriage.

Civil rights advocates say such a ruling also could raise questions about discrimination involving other family relationships, like divorce or out-of-wedlock children. And although the court isn’t likely to reopen the issue of racial bias, at a minimum the case could force the court to explain why businesses can’t also claim a right to boycott interracial marriages.

With newly appointed Justice Neil Gorsuch firmly in the court’s conservative camp, the outcome may rest with Justice Anthony Kennedy, who’s a champion of both gay rights and free expression. He wrote the 2015 marriage ruling, saying same-sex couples are entitled to “equal dignity in the eyes of the law.”

But in almost the same breath, he said that religious people “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”

Former U.S. Solicitor General Greg Garre says the decision will almost certainly fall on the shoulders of Kennedy. “We’re likely to have a court of one.”


Scheduled SCOTUS Rulings

Oct. 2 ● Epic Systems v. Lewis

Whether workers are bound by arbitration agreements that bar class-action suits


Oct. 3 ● Gill v. Whitford

Whether gerrymandered voting districts can be so partisan that they violate the Constitution


Oct. 10 ● Trump v. International Refugee Assistance

Whether President Trump’s temporary travel ban exceeds his authority or violates the Constitution


Nov. 8 ● Husted v. Randolph Institute

Whether Ohio can purge voters from its registration database based largely on their failure to vote


Not Yet Scheduled

● Masterpiece Cakeshop v. Colorado Civil Rights Commission

Whether the Constitution protects a baker who refuses to make wedding cakes for same-sex couples


● Carpenter v. United States

Whether prosecutors need a warrant to get mobile phone records that show months’ worth of location data
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