Justices Weigh Case on Same-Sex Marriage, With Education Implications

By Mark Walsh — December 05, 2017 3 min read


The U.S. Supreme Court on Tuesday heard arguments in its most high-profile case of the term, pitting the First Amendment rights of a Christian baker against a state’s prohibition against discrimination based on sexual orientation.

The case is being watched by educators, from religious colleges worried they will be required by the government to act contrary to their theological beliefs to the teachers’ unions, which signed on to a brief supporting the same-sex couple who were denied a cake for their wedding reception.

At oral arguments in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission (Case No. 16-111), the justices were sharply divided.

Justice Samuel A. Alito Jr., a member of the court’s conservative bloc who voted against legalizing same-sex marriage in 2015, wondered whether a ruling against the baker would compel religious colleges to provide housing for same-sex couples on the same basis they provide it for straight couples.

But members of the court’s liberal bloc wondered who would not qualify as an “artist” engaged in expression—A florist? a hairdresser? A makeup artist?

“Why is there no speech in creating a wonderful hairdo?” Justice Elena Kagan pressed Kristen K. Waggoner, the lawyer for Phillips, who had said some of those jobs were not necessarily involved in speech.

Justice Anthony M. Kennedy, who has written all of the high court’s major gay-rights decisions, expressed concerns “an affront to the gay community” by bakers who refused service to same-sex couples. But he was critical of anti-religious language used by one member of Colorado’s civil rights panel in proceedings below. The panel member had said, “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust ... .”

“Tolerance is essential in a free society,” Kennedy said. “It seems the state in its position here has been neither tolerant nor respectful of Mr. Phillips’s religious beliefs.”

A Reference to Pledge of Allegiance Case

In July 2012, the same-sex couple, Charlie Craig and David Mullins visited Masterpiece Cakeshop, a Lakewood, Colo., bakery owned by Jack C. Phillips.

Colorado did not recognize same-sex marriage at the time, so Craig and Mullins were to be married in Massachusetts. They were planning a reception for the Denver area and came to Phillips’s shop for to discuss a cake.

Phillips, who describes himself as a cake artist, creates elaborate confections for weddings and other occasions. He is a devout Christian who won’t even bake goods with Halloween themes.

Turned away by Philips, Craig and Mullins filed complaints about Masterpiece Cakeshop with the Colorado Civil Rights Commission that they had been discriminated against based on their sexual orientation, which is protected under Colorado law.

The state civil rights panel ordered Phillips to design wedding cakes for same-sex ceremonies if he also provides them for opposite-sex ones. And he was required to reeducate his staff about the state’s anti-discrimination law. (Phillips says he stopped offering wedding cakes in response, giving up 40 percent of his shop’s business.)

The Colorado Court of Appeals upheld the commission, ruling among other things that Phillips “does not convey a message supporting same-sex marriages merely by abiding by the law.”

Phillips appealed to the U.S. Supreme Court after Colorado’s highest court declined review. The baker prominently cites the high court’s 1943 decision in West Virginia State Board of Education v. Barnette, which held that public schools could not compel schoolchildren to salute the U.S. flag.

Meanwhile, the Council for Christian Colleges and Universities filed a friend-of-the-court brief in support of neither party, but arguing that the ruling below for the same-sex couple “represents a serious, even existential threat to U.S. religious higher education.”

“For if the First Amendment allows a government to coerce Mr. Phillips to act and speak in ways contrary to his religious beliefs, it is a small step to concluding that nonprofit religious colleges have no First Amendment defense when the government coerces them to speak or act contrary to their beliefs or teachings,” the brief says.

A friend-of-the-court brief signed by the American Federation of Teachers and the National Education Association in support of Craig and Mullins argues that a decision for Phillips could lead to more same-sex couples facing rejection from private child-care facilities and schools on religious grounds.

A version of this news article first appeared in The School Law Blog.

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