There’s a bit of a “mystery” unfolding within the Supreme Court, as the nation’s top justices have repeatedly delayed announcing whether they will hear a contentious case surrounding a Christian baker who was punished for refusing to make a gay wedding cake.
On Monday, the Supreme Court once again delayed a decision on the controversial Masterpiece Cakeshop v. Colorado Civil Rights Commission case, a battle that surrounds baker Jack Phillips’ 2012 refusal of a same-sex wedding cake.
The decision to delay was the 13th time that the high court has pushed off its pending announcement. And the clock is ticking, considering that the court is heading out on a midyear vacation on May 29.
As the Washington Times noted, the cake case has been on the court’s calendar since September and is now scheduled for Thursday’s conference. The continued delay has led to speculation that the justices are most likely to deny hearing the dispute.
Either way, there’s certainly some intrigue surrounding the debate, especially considering the ever-growing battle over religious freedom rights of business owners versus the equal protection rights of U.S. citizens more broadly.
“[The justices] are purposefully holding it over for some reason that we don’t know,” Jordan Lorence, an attorney at the conservative Alliance Defending Freedom law firm, told the Times, noting that the deferrals are a “great mystery.” “That is very, very unusual, but I think it points out the importance of these right of conscience cases.”
Lorence might have a point, seeing as the cases keep on mounting amid persisting ambiguity in the wake of gay marriage legalization. Phillips, much like Oregon bakers Aaron and Melissa Klein and numerous other wedding venders across the U.S., has found himself in the crosshairs of the government as well as LGBTQ activists after declining a cake.
The baker has been locked in a tough legal battle with the Colorado Civil Rights Commission for the past five years. The agency ruled that his cake refusal was in violation of anti-discrimination laws and punished him accordingly; he responded with appeals that have made their way up to the nation’s high court (more on that here).
A Separate Victory Is Further Fueling Speculation
It’s important to note that Thursday’s Supreme Court conference — and the justices’ potential silence-breaking on Phillips case — comes as many conservatives are lauding a lower court victory in a separate battle that found that a printer in Kentucky was within his rights to refuse printing T-shirts for a gay pride event.
As Faithwire previously reported, the Kentucky Court of Appeals ruled 2-to-1 that Blaine Adamson, owner of Hands on Originals, a print shop based in Lexington, Kentucky, is correct in his argument that being forced to create the T-shirts was a violation of his religious beliefs, according to the Becket, a law firm devoted to the defense of religious liberty.
Problems began for Adamson, who is represented by Alliance Defending Freedom, a conservative law firm, after he was asked in 2012 by the Gay and Lesbian Services Organization to make shirts for a local gay pride event. He declined and offered to help the group find other printers who might be willing to do so — but that did little to temper controversy and consternation.
Eventually, Adamson cane under fire from the government, though he has successfully fought back along the way. His victory raises new questions about how to navigate the continued debate between First Amendment rights and Fourteenth Amendment protections.
Alliance Defending Freedom, the firm that represents Adamson, as well as Phillips, sent a letter to the Supreme Court on May 12, noting the Kentucky Court of Appeals ruling meant that the printer and his shop “could not be held liable for sexual orientation discrimination under a local ordinance for declining to print shirts promoting the Lexington Pride Festival for the Gay and Lesbian Services Organization.”
This certainly will be held up by many of Phillips’ supporters to defend his purported right not to make the gay wedding cake.
These Legal Battles Get Pretty Complicated
The situation is actually much more complicated than that, with the details of these cases remaining murky and tough to navigate. To illustrate the potential differences between gay wedding cake refusals and a decision not to print gay pride T-shirts, it’s important to look back at a separate 2015 case that gained national attention.
That incident surrounded Azucar Bakery in Denver, Colorado, which declined to fulfill two cake orders in 2014 that included Bible references, as well as imagery, that the bakery deemed offensive. It all started when a Christian named William Jack went into the shop and requested two Bible-shaped cakes that would feature two men holding hands with a red “X” over them.
He wanted one of the cakes to read, “God hates sin. Psalm 45:7” and “Homosexuality is a detestable sin. Leviticus 18:22” and he requested that the other have the same images along with the words “God loves sinners” and “While we were yet sinners Christ died for us. Romans 5:8,” KMGH-TV reported.
But owner Marjorie Silva refused the order. The baker said she’d make the Bible-shaped cakes, but that she wouldn’t include the images or verses; later, she also argued that she also wouldn’t make a cake that targeted any other group, including Christians.
Jack responded by going to the Colorado Civil Rights Division, the state’s civil rights agency, and alleging that he was discriminated against based on his Christian creed. Silva, however, countered that she was merely refusing to make the cakes based on the belief that the images were “hateful and offensive,” as KMGH-TV noted.
So, with the commission’s punishment of Phillips in mind, how did the same state agency rule when Jack waged his own complaint against Silva’s anti-gay cake refusal? Quite differently, in fact, with the agency writing in its decision that the bakery (along with two separate bakers that were also purportedly approached by Jack) “did not discriminate based on the Charging Party’s creed.”
“Instead, the evidence reflects that the Respondent declined to make the Charging Party’s cakes, as he had envisioned them, because he requested the cakes include derogatory language and imagery,” the letter continued. “The evidence demonstrates that the Respondent would deny such requests to any customer, regardless of creed.”
There’s Been Consternation Over the Seemingly Divergent Decision
The ruling on the Azucar Bakery case — especially compared to Phillips’ own outcome — has led to some serious head-scratching among many conservatives, who feel it was unfair for the same agency to punish one baker and then let the other one off the hook.
But UCLA professor and attorney Eugene Volokh explained his view on how Colorado law works in these cases:
While Jack has succeeded in getting publicity for his cause, he doesn’t have a legal leg to stand on. Colorado law bans discrimination by a wide range of businesses, but only when the discrimination is based on “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” This means that a store may not specifically refuse to sell cakes to gays, or sell them to (say) Baptists. It may well mean that it may not specifically refuse to sell cakes for use in same-sex marriages, or in Baptist events. It may even mean that it may not specifically refuse to inscribe messages that identify buyers as gay (e.g., “John and Bill’s marriage”), or as Baptist (e.g., “Baptist Church Picnic”).
But nothing in the law bans discrimination based on ideology more broadly. A store can refuse to sell to someone because he’s a Nazi, or a Communist, or pro-life, or pro-choice, or pro-gay-rights, or anti-gay-rights. A store can likewise refuse to inscribe cakes with Nazi, Communist, pro-life, pro-choice, pro-gay-rights, or anti-gay-rights messages, if it’s discriminating based on the ideology of the message, rather than the religiosity of the buyer.
But not every attorney agreed with this assessment.
Jeremy Tedesco, a lawyer with Alliance Defending Freedom, released a statement after the commission’s ruling in 2015 stating that, while he agreed with the Azucar decision, he felt the government was incorrect in its ruling on Phillips’ cake refusal.
“We commend the commission for reaching the right conclusion that these cake artists should not be forced to violate their conscience, but clearly the commission should have done the same for Jack Phillips,” Tedesco said at the time. “The commission found that these three cake artists have the freedom to decline creating unique cake creations because the artists found the requests offensive, but all Americans should be alarmed that the same commission determined that Jack doesn’t have that same freedom.”
The attorney said Phillips serves everyone much like the bakers who refused the anti-gay cake messaging, but that he simply didn’t want to bake anything that he felt would “violate his conscience.”
“The commission’s inconsistent rulings mean that the owners of these three cake shops may run them according to their beliefs, while Jack cannot,” Tedesco continued. “He risks losing his life-long business altogether if he continues to run it consistent with his faith. Such blatant religious discrimination has no place in our society.”
What Does This All Mean?
There’s clearly a deep divide when it comes to how the law is understood and comprehended, specifically when it comes to Americans’ First Amendment rights versus the right to equal protection under the law enshrined in the Fourteenth Amendment.
In two cases — Azucar Bakery and Blaine Adamson/Hands on Originals — business owners refused to place specific messages on products (the former refused anti-gay sentiment while the latter declined to print shirts with messaging for a gay pride parade).
In the case of gay wedding cakes, an overt message isn’t necessarily being printed or created on a product. Still, some have argued that it is the message that a same-sex wedding cake conveys that some Christian bakers are uncomfortable with. Here’s how the Alliance Defending Freedom explained that dynamic:
Alliance Defending Freedom (ADF) attorneys and ADF allied attorneys came to Jack’s defense when the couple filed a complaint with the Colorado Civil Rights Commission for sexual orientation discrimination. Even after explaining to the commission that it wasn’t the people Jack objected to, it was the message the cake would send about marriage, an administrative law judge ruled against Jack in December 2013, saying that designing and creating cakes for same-sex wedding ceremonies are not speech protected by the First Amendment. The commission also ordered Jack and his staff to create cakes for same-sex wedding celebrations, go through a “re-education” program, implement new policies to comply with the commission’s order, and file quarterly “compliance” reports for two years to show that Jack has completely eliminated his religious beliefs form his business.
Clearly, it’s all very complex. We’ll have to wait and see whether the Supreme Court takes up Phillips’ case and issues a ruling that helps clarify the ever-contentious battle between First Amendment rights and equal protections under the Fourteenth Amendment.
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