After Jack Phillips refused to bake — or, as he would put it, "create" — a cake for Charlie Craig and David Mullins, the Colorado Civil Rights Commission found that Phillips had engaged in discrimination on the basis of sexual orientation. That judgment was upheld by a Colorado court.
But on Tuesday Philips' lawyer told the justices that the state had violated Phillips' 1st Amendment rights when it ruled that he was obligated, in effect, to endorse gay marriage by creating one of his signature cakes for the couple — or, as the lawyer described it, to "sketch, sculpt, and hand-paint cakes that celebrate a view of marriage in violation of his religious convictions." That's a dramatic but deceptive description of what's at stake in this case.
As we have observed before, there may be a small number of people in "expressive" professions — political speechwriting, for example — who might claim the right to refuse to craft a message they considered offensive because the product was as much their creation as that of their client.
Bakers of wedding cakes, however talented, don't belong in that category. If Phillips could cite his creativity to escape complying with fundamental civil rights laws, why couldn't a chef, hairstylist or makeup artist do the same? And if Phillips could deny his services to a gay couple because he objects to same-sex marriage, could he also turn away a black couple on the grounds that he objects to interracial unions?
In considering Phillips' weak claim of a free-speech right, the court must balance it against the strong public interest in requiring merchants to treat all customers equally.
The justices’ appeared closely divided, with Justice
Phillips' religious beliefs are worthy of respect; they are not, however, a license to engage in discrimination. That is what the court must rule.