The Supreme Court will probably not render a decision for months on the case of a Colorado baker being sued for refusing to bake and decorate a cake for a same-sex wedding, but the legal team representing the baker says the Constitution is clearly on his side and he is encouraged by some of the comments of the justice likely to swing the outcome.
Alliance Defending Freedom, or ADF, represents Masterpiece Cakeshop Owner Jack Phillips and several other clients who contend their sincerely held religious beliefs on marriage preclude them from providing services for a same-sex wedding.
Phillips points out that he willingly serves homosexual customers so long as they are not asking him to affirm same-sex marriage. In addition, Phillips refuses to provide cakes for heterosexual bachelor and bachelorette parties or for weddings that constitute a second heterosexual marriage.
But David Mullins and Charlie Craig see it differently. When Phillips refused to decorate a cake for their same-sex ceremony, they complained to state officials who filed suit against Masterpiece Cakeshop for refusing service to the men based on their sexual orientation.
Oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Right Commission took place Monday at the Supreme Court. ADF Senior Counsel Jeremy Tedesco says his team went in expecting the justices to uphold the Constitution.
“Our assumption going in is that the right to be free from compelled speech, the right to have a situation in our country where the government doesn’t coerce – in this case artistic professionals – to create artistic expression that goes against their beliefs would be upheld,” said Tedesco.
He says the verdict in this case could have wide-ranging impact.
“The ruling in this case is ultimately going to bind other people. It’s going to affect other people. This time is may be a religious objector to same-sex marriage, but the next time it might be somebody who’s liberal, who’s objecting to something they don’t want to do,” said Tedesco.
Both sides are nervous about the outcome in this case. Just two years ago, the court ruled 5-4 that there is a constitutional right to same-sex marriage. Since then, the complexion of the court hasn’t changed much. Conservative justice Antonin Scalia was replaced by Neil Gorsuch, who is believed to have similar views on religious freedom issues.
That leaves Anthony Kennedy as the likely swing vote. Kennedy has authored three landmark decisions that sided with the LGBT lobby in 2003, 2013, and 2015. However, some of his questions during Tuesday’s arguments give allies of Phillips hope and allies of Mullins and Craig reason for concern.
“[T]olerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs,” said Kennedy.
Tedesco says that quote was encouraging to him because it shows Kennedy understands their position.
“That’s ultimately what this case is about. How do we live together in a pluralistic society like this, with deeply different beliefs about core issues like marriage and what that is. We don’t live together peacefully when one side of the debate has the ability to use the government to silence and punish the other side,” said Tedesco.
Another Kennedy comment also raised eyebrows. As an American Civil Liberties Union attorney tried to make the case that rejecting the message of Mullins and Craig was the same as rejecting them, Kennedy quipped, “It’s not their identity; it’s what they’re doing.”
Tedesco says that is a crucial point.
“That’s always been the distinction we’ve made and it’s the right distinction. The Supreme Court has even recognized the distinction in past cases – all the way back to 20 years ago – that there’s a difference to objecting to the message than objecting to the person. When you’re rejecting the message, you’re not considering the person’s protected characteristics,” said Tedesco.
“When you object to the message, you exercise your First Amendment right to say there are certain messages, ideas, and events that I’m not going to promote through my artistic expression or speech. That’s far different than saying, ‘I’m not going to serve you because of who you are,'” said Tedesco.
“The other side always tries to mischaracterize what these cases are about by analogizing them to class-based discrimination,” he added.
But Tedesco cautions that Kennedy was tough on everyone on Tuesday.
“Justice Kennedy asked difficult questions of both sides and made comments during argument from attorneys on both sides that were difficult questions and telling comments. So it’s hard to say Justice Kennedy will lean our way and rule for us,” said Tedesco.
Tedesco knows these cases often get decided along ideological lines but he hopes all nine justices see the fundamental rights at stake for Phillips and all Americans.
“I’ve always been confident in the case because those kind of first principles are the things that make our society great. We don’t want to see those rights and those privileges of living in this country be chipped away,” said Tedesco.
Nonetheless, Phillips lost earlier rounds in court and florists, artists, and videographers represented by ADF are also facing legal setbacks. So if the constitutional principles are clear, why are the verdicts going the other way?
“My best explanation of it is that there have been times throughout American history where things that have seemed culturally imperative were used at least temporarily to overrun First Amendment rights,” said Tedesco, noting that the Supreme Court once allowed states to mandate schoolchildren to recite the Pledge of Allegiance before later reversing course.
“I think what you’re seeing is there’s so much cultural, political, legal momentum related to same-sex marriage that some of these principles are getting muddied and mischaracterized and maybe overrun for maybe a temporary time by lower courts,” said Tedesco.
Tedesco says even people who strongly supported the Supreme Court’s legalization of same-sex marriage are very uncomfortable with the idea of the government telling people what they have to do.
“It’s illiberal and it’s contrary to the best practices and traditions of our country. It’s one thing to have same-sex marriage established as a constitutional right. It’s a completely different thing to force people to agree with and promote that idea against their will and their convictions, especially when you’re dealing with people who, like the Supreme Court said, who have decent and honorable beliefs about what marriage is,” said Tedesco.
And for those adamantly opposed to ADF in this case, Tedesco says their rationale could one day put them in the same position as Phillips.
“That kind of rule can quickly be turned around and used to punish people on different issues. You can’t take this ruling, if it’s against Jack Phillips, and just limit it to him and just same-sex marriage. And that’s why I think ultimately, free speech and a free society, tolerance for different points of view will ultimately be the way this plays out. We will ultimately prevail on that point,” said Tedesco.