Will The Supreme Court Greenlight Religious Discrimination?

WASHINGTON, D.C.—On December 5, the U.S. Supreme Court will hear the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, a dispute which came about when, in 2012, Masterpiece's owner Jack Phillips, citing his devout religious beliefs, refused to make (he would say "create") a wedding cake for gay couple David Mullins and Charlie Craig. The couple, both Colorado residents, sued under the state's civil rights law, which prohibits discrimination on the basis of sexual orientation by businesses or other institutions that are regularly open to the public—and won. Phillips, whose cause was quickly taken up by conservative religious law firm Alliance Defending Freedom (ADF), appealed to the Colorado Court of Appeals—and lost there as well; hence the impending argument before the nine justices of the Supreme Court, including Denver native Neil Gorsuch, who so far has given no indication that he will recuse himself from deciding the case.

And depending on how the Supreme Court rules, that decision could have grave negative effects for, among many others, members of the adult entertainment industry. One clue to that result: The U.S. Department of Justice has filed an amicus brief supporting Phillips' position.

"The brief frames the case as a matter of free expression rather than free exercise of Mr. Phillips’s religious beliefs," editorialized The Washington Post. "That’s because Masterpiece Cakeshop isn’t really a religious-freedom case at all—though Mr. Phillips’s attorneys do point to their client’s constitutional rights on that front. ... That’s why both Mr. Phillips and the Justice Department focus on the baker’s freedom of expression, arguing that crafting a cake for a same-sex wedding would force Mr. Phillips to celebrate a ceremony of which he disapproves. Yet there is little reason to believe that wedding guests would attribute to the cake baker an endorsement of the festivities as a whole—or that a reasonable guest might believe that of the baker rather than of the wedding hairdresser, the caterer or the hotel providing the venue."

Other amici supporting Phillips include the religious ultra-conservative Family Research Council, the ultra-conservative law firm Liberty Counsel, the Foundation for Moral Law (founded by Alabama Republican Senate candidate Roy Moore), the North Carolina Values Coalition, and several other right-wing religious groups—not to mention 86 Republican members of Congress.

Many reading this weren't around (or perhaps simply weren't paying attention) when Congress passed the Civil Rights Act in 1964. Among other things, the Act made it illegal for businesses which offer products or services to the public to discriminate against anyone on the basis of their skin color, their religion or their sexual orientation. Sure, that last one includes the LGBTQetc. community, but it applies just as forcefully to people who work in an industry that a lot of so-called religious conservatives don't like: porn, not to mention practitioners of other forms of sex work. Imagine if, say, Jessica Drake were to walk into a bakery and request a custom cake—and the baker recognized her as a porn star? Should he have the legal right to refuse to make that cake on account of Drake's "immoral" profession?

Or how about this?: "Sorry, Ms. Hartley, but I can't open an account for you at our bank. You're an immoral porn star!"

Or maybe, "I've looked over your loan application, Ms. Albrite, and I'm afraid I can't approve it. After all, you're in the sex business!"

Need we go on?

ADF's Sarah Kramer thinks her group has the answer to all that: "Jack’s decision to decline the custom cake order had nothing to do with the same-sex couple that requested it. Jack will sell anything off his shelves to those who walk in the store. In fact, he offered to do just that for the couple suing him. This case is really about whether Jack has the freedom to decline to use his artistic talents to celebrate a particular event that violates his faith. And this is not the only event he has declined to promote. He has turned down a cake for a divorce party. He has turned down cakes for bachelor parties and Halloween. He serves all people, but does not celebrate all events."

But Phillips isn't being asked to "celebrate [the] event"; he's just being asked to make a wedding cake, much as he's made for hundreds if not thousands of others. And the fact that others haven't previously sued him for refusing to make their cakes (though some of the turn-downs were clearly not for legally protected parties) doesn't make his brand of discrimination legal.

Kramer then brings up the somewhat thornier question of artistic integrity: "Jack designs custom cakes through drawing, sculpting, and painting. There is no doubt that there is artistic expression and creativity involved in the custom cakes that Jack designs ... [A]rt is constitutionally protected as speech. And just like the First Amendment guarantees that the government will not silence or compel our speech, the same is true for artistic expression. ... If the government has the power to force artists to portray certain messages or celebrate certain events through their art, then freedom for all of us is at risk."

"Our showcases are open; people come in and buy stuff all day long," Phillips has stated. "But the wedding cakes we created were custom. When people came in for a wedding cake, I sat down and designed it with them personally."

But again, Phillips isn't being asked to "celebrate" anything in designing a cake; he's only being asked to do the job he opened his cakeshop to do: Make cakes for people who come into his shop, presumably because they admire his work, and offer to pay him for that service.

Interestingly, a group of "cake artists" has filed its own amicus brief in the case. Claiming to "take no position as to which party should prevail in this specific case," they argue that their work "requires artistic exertion within an expressive endeavor to generate works of art," and that Supreme Court precedent prevents the government via the courts from compelling the creation of an artistic work. But aside from displaying lots of photos of very pretty cakes, and claiming that such cakes should be viewed as at least as communicative of ideas as many other art forms, the brief is silent regarding just how this artistic creativity would be or should be impacted by civil rights legislation—though there is little doubt that ADF will adopt its point wholeheartedly.

"I have no problem serving anybody—gay, straight, Muslim, Hindu," Phillips told Adam Liptak of The New York Times during an interview. "Everybody that comes in my door is welcome here, and any of the products I normally sell I’m glad to sell to anybody." However, he added, "Because of my faith, I believe the Bible teaches clearly that it’s a man and a woman [and making a cake for a gay wedding] causes me to use the talents that I have to create an artistic expression that violates that faith."

It should also be pointed out that Phillips is hardly the only businessperson to refuse to provide his/her advertised services/products to gays; in fact, he's not even the first. Baronelle Stutzman of Arlene's Flowers in Oregon refused to provide floral arrangements for a gay wedding; Elane's Photography in Arizona refused to provide photographic services for a gay wedding; Carl and Angel Larsen of Telescope Media Group in St. Cloud, MN sued for the right to refuse to film gay weddings. They all lost.

"But requiring the bakery to follow the law did not violate Phillips’ religious freedom or free-speech rights," noted Rokia Hassenein of Americans United for Separation of Church and State. "Phillips remains free to worship as he sees fit, and he can freely express his views on marriage equality. What he cannot do, under Colorado law, is deny services to people based on who they are. That is discrimination, pure and simple."

"A win for Phillips could have far-reaching ramifications," warned Greg Stohr of Bloomberg News. "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."

Or anything to do with porn or sex work.