Colorado-Born​ ​SCOTUS​ ​Case​ ​Could​ ​Shape​ ​Future​ ​Of​ ​Anti-Discrimination​ ​Laws

Dec 4, 2017

On a Sunday night in D.C., eager spectators braved the cold to get in line early for a potential seat inside the U.S. Supreme Court. 

Come Tuesday Dec. 5, the court would hear arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case first amendment experts say has the potential to sap the strength of anti-discrimination laws. Colorado and 18 other states have granted some form of legal protection for sexual minorities. 

Public accommodation non-discrimination laws protect LGBT people from being unfairly refused service or entry to, or from facing discrimination in, places accessible to the public on the basis of sexual orientation or gender identity. Public accommodations laws generally cover anywhere someone is when they are not at home, work, or school, including retail stores, restaurants, parks, hotels, doctors' offices, and banks.
Credit Movement Advancement Project

It all began in 2012, when two men walked into a local bakery in search of a wedding cake. 

At the time, Charlie Craig and Dave Mullins were unaware that Colorado had a public accommodations law that prohibited retail shops, restaurants and other businesses from refusing services on the basis of sexual orientation. 

The shop's owner—Jack Phillips —was a well-known baker and cake decorator in the area. He greeted the couple and sat down with them for a consultation, according to an interview with Denver's KMGH TV. 

As a devout Christian, Phillips told the couple he couldn't provide certain services for same-sex weddings. Crafting a cake in support of their relationship would violate his strongly held religious beliefs, he said. 

"It was just a hard moment," Mullins told KMGH TV. "We'd never experienced that kind of treatment at a business before." 

The couple got up and left. 

Shortly after, Mullins and Craig filed a complaint with the Colorado Civil Rights Commission, citing the baker's refusal as a violation of the state's public accommodations law. A Colorado court ruled in favor of the couple two years later, and now it is set to be heard before the 9 Supreme Court justices. 

The case has spun itself into a lightning rod for a national debate over the ranking order of some of the country's most basic freedoms: religious expression and the legal right in some states to be treated equally regardless of one's sexual orientation. 

Over the weekend leading up to the hearing, Colorado's congressional members were quiet on the issue—but others weren't so hesitant. 

U.S. Rep. Vicki Hartzler of Missouri tweeted her support of Phillips, saying no one should be forced by government to do something against their deeply held beliefs. Supporters of the baker have adopted the hashtag "#justiceforjack" a campaign in favor of one's right to refuse service based on one's religion. 

The case's polarizing arguments will likely lead to a 5-4 decision either way, with Justice Anthony Kennedy being the swing vote, according to Ilya Shapiro, senior fellow at the Cato Institute. The D.C. - based libertarian think tank recently filed a brief supporting the baker. 

"[Cato Institute] is a pro-free speech. We're also pro-gay rights," Shapiro said. "But since [the cake shop] is a private establishment—not the government acting—we should, I think, respect its freedom of speech and freedom of association." 

Last month, Phillips told crowd of supporters at Colorado Christian University that his decision to not bake a cake for the couple's wedding was well within the rights granted to him under the first amendment. 

"And that's why it's been so shocking for me that the government would try and take away my freedoms and force me to create something that went against my faith," he said. 

Craig Konnoth, associate professor of law at the University of Colorado, Boulder, says if the court rules in favor of the baker, it would create an unprecedented expansion of free speech rights. 

"If the court says a baker has the right to discrimination, it will be hard to draw the line at the bakers," he said. "It will be extended to lawyers, doctors and whoever else." 

Ahead of the hearing, more than 100 briefs had been filed for the case, roughly evenly split between support for the baker and for the couple. 

Once oral arguments conclude, the justices will deliberate and likely issue an opinion next summer.