A cake that wasn’t baked triggered a divisive American debate five years ago, which is now before the top court of the land. The U.S. Supreme Court heard oral arguments last week on whether a baker can refuse an order for a wedding cake from a gay couple on the basis of his religious faith. At the heart of the debate is the conflict between religious freedom and protection against discrimination — both guaranteed by U.S. Constitution or laws. The SC also has before it at least 100 written submissions by lawyers, academics and even chefs on the issue.
It was in 2012 that Charlie Craig and David Mullins walked into the Masterpiece Cakeshop in Colorado, run by Jack Phillips, and sought to place an order for a cake for their wedding. Mr. Phillips received them, but turned down their order for a custom-made cake. He said making a cake for a gay marriage amounted to a breach of his Christian faith. The couple were welcome to buy anything that is on offer at the shop, he told them.
Gay marriage was not legal in Colorado in 2012 — the Supreme Court made it a constitutional right in 2015 — but like 21 other States, it has a law that says businesses that are open to the public may not deny equal service to customers because of their race, religion, nationality or sexual orientation. The couple, who were planning the wedding in a different State, felt “devastated” by the rejection and approached the Colorado Civil Rights Commission, which ruled in their favour. Mr. Phillips went in appeal and lost in the State, and then approached the Supreme Court. Alliance Defending Freedom, a conservative Christian legal group, is supporting Mr. Phillips, while the American Civil Liberties Union (ACLU) is representing Mr. Mullins and Mr Craig.
Freedom of speech
The couple argue that it is about the right of gay people to receive equal service and a person’s religious rights cannot be the basis for discriminating against others. Mr. Phillips argues that he did not discriminate against the gay couple, but only refused to be a part of their marriage that he says is against his faith. In the court, his lawyer argued that making a cake is an artwork, which he cannot be compelled to do, invoking freedom of speech.
“Jack Phillips has claimed he has a First Amendment right (which protects freedom of religion and freedom of speech) to discriminate against same-sex couples. He does not. Businesses open to the public may not choose their customers... A decision against Charlie and Dave would allow businesses across the country to argue that they too can refuse service based on who the customer is,” David Cole, legal director of the ACLU who argued the case, said in a statement.
Judges appeared to be divided on the issue and Justice Anthony M. Kennedy, a swing vote on the bench, sounded sympathetic to both sides. He wrote the 2015 majority judgement that made same-sex marriage legal and has been a supporter of gay rights. He has also been a strong supporter of religious freedom and freedom of speech. The Trump administration’s Solicitor General strongly supported Mr. Phillips’ case.
Both sides claim they are sympathetic to the other’s position, but could not cede ground because it was a matter of principle. Mr. Phillips has even shrunken his business rather than making cakes for same-sex weddings and says his faith has been strengthened. “Masterpiece Cakeshop is not currently accepting requests to create custom wedding cakes,” says his website. A verdict is expected by June 2018.
(Varghese K. George works for The Hindu and is based in Washington)
