The Colorado Civil Rights Commission’s brief to the Supreme Court sets the free speech question aside, charging that the facts of the case don’t suit an argument over the expressive nature of wedding cakes. Both sides agree Phillips refused to create a cake for the couple before knowing what would be depicted, or if the wedding desert would even be custom-made. His refusal was based “solely” on the sexual orientation of Craig and Mullins, the brief states, not on the expressive content of the cake.
“Had [Phillips] refused to serve the couple because they sought a cake with a particular design or which featured a specific message, this case would have presented different legal issues,” it reads.
But, said Melling, even if wedding cakes are deemed “expressive conduct,” refusing to sell one to a same-sex couple remains “impermissible discrimination” under the law.
“No bakery has to sell wedding cakes,” Melling added. “But if it chooses to sell wedding cakes it can’t turn away some customers because of who they are.” The ACLU’s brief, filed on behalf of the couple, maintains that the law is constitutional because it targets conduct, not speech, of public businesses.
Phillips argues that anyone is free to purchase pre-baked goods from his store, but should he provide custom wedding cakes to same-sex couples, it would appear as if he were backing their union. Lower state courts in in the Masterpiece case have rejected this contention, ruling that simply following Colorado’s anti-discrimination law cannot reasonably be construed as an endorsement of same-sex marriage.
Even if justices do deem wedding cakes to be “artistic,” that doesn’t mean artistic expression will automatically override Colorado’s public accommodation statute, said Carl W. Tobias, a law professor at the University of Richmond. The court could find that wedding cakes are expressive, while ultimately deciding that whatever free speech rights Phillips has still do not supersede the rights of the couple to be served. (Indeed, an amicus brief filed by a collective of creative cake makers didn’t advocate for one side or the other, but only asked that cakes be seen as art in the eyes of the law.)
The court’s recent rulings around gay marriage give reasons for LGBTQ advocates to be hopeful. Justice Anthony Kennedy, expected to be a crucial vote in Masterpiece, placed special emphasis on dignity in his Obergefell v. Hodges decision legalizing same-sex marriage. It seem unlikely, Tobias speculated, the court would vote to curtail rights afforded to gay couples so recently. This remains true even after the March confirmation of the right-leaning Justice Neil Gorsuch. Gorsuch took the place of the equally conservative Antonin Scalia, who died last year, leaving the ideological makeup of the bench intact.
So what is left to be said of the argument that wedding cakes are art, trumping Colorado’s law? “It is creative, just like the cakes he makes,” said Tobias. “But I’m not sure it’s going to carry the day.”