It is traditional for couples to have a cake at their wedding.  The couple has to make decisions about how much they can afford and what the cake should look and taste like, but that’s about it.

The matter is not always that simple, however, if the couple is same sex.  In fact, whether or not Colorado baker Jack C. Phillips should have to make a cake for the wedding of two men, Charlie Craig and David Mullins, is a federal case.

The United States Supreme Court heard arguments on the matter yesterday.  Phillips, who refused to make a cake for the couple when he learned they were gay, argues he is protected by the U.S. Constitution.

Attorney Kristen Waggoner, representing Phillips, argued that “The First Amendment prohibits the government from forcing people to express messages that violate religious convictions.  Yet, the (Colorado Civil Rights) Commission requires Mr. Phillips to do just that.”

Additionally, Waggoner argued that Phillips’ crafted cakes are artistic creations and thus a form of speech that is also protected by the First Amendment.

That position set off a series of questions by several of the Justices: Who else is an artist? The person who does the floral arranging?  How about the person who designs the invitation? What about the chef who cooks for the reception? The jeweler?

Fredrick Yarger, Colorado Solicitor General, argued before the court on behalf of the state Civil Rights Commission. He told the court that the baker violated the state public accommodation law.  “Masterpiece Cakeshop is a retail baker that is open to the public and subject to the Colorado Anti-discrimination Act,” he said.

That Act prohibits discrimination in public accommodations, such as retail businesses, based on disability, race, creed, color, sex, sexual orientation, marital status, national origin or ancestry.”

Court observers say it’s difficult to predict the outcome.   Two years ago the Supreme Court said same sex couples have a constitutional right to marry. Justice Anthony Kennedy wrote the opinion in the 5-4 decision and he is again seen at the swing vote in this case.

Depending on how this opinion is written, the decision could have a far reaching impact.  Based on the arguments, a ruling in favor of the baker could broaden the category of businesses that have a constitutional right to refuse to serve same-sex couples, but a decision for the couple would finally settle the ongoing controversy over whether bakers, photographers and others in the wedding business could legally refuse their services.

 

 

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