Cake shops vs. same-sex marriage: The next constitutional battleground

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Embargo: Indianapolis, IN Indianapolis residents Craig Bowen and Jake Miller were both downtown when the ruling hit social media. They were the first to arrive at the clerk's office.

Just days after same-sex marriage was legalized nationwide in the landmark U.S. Supreme Court decision, courts at the state level are being asked to decide between two core constitutional rights: equal protection under the law and freedom of expression.

In both Colorado and Oregon, local cake shops are challenging laws that bar them from refusing to make cakes for same-sex wedding celebrations. Despite burgeoning public support for same-sex marriage nationwide, the answer appears to be anything but clear cut.

On Tuesday, the Colorado Court of Appeals heard oral arguments in Masterpiece Cakeshop v. Craig in which Jack Phillips declined to make a cake for Charlie Craig and David Mullins’ wedding reception in 2012 and was subsequently found to be in violation of the state’s Anti-Discrimination Act by the Colorado Civil Rights Commission.

According to his lawyer Jeremy Tedesco, the senior legal counsel for the Alliance Defending Freedom, Phillips was exercising his right to free speech.

“What we’re fighting for in this case,” Tedesco said in an interview, “is the ability of cake artists to decline to use their artistic talents to create expression that violates their beliefs.” Phillips adheres to his religious beliefs by refusing to make other types of cakes, such as those with Halloween or “anti-American” messages, according to the attorney.

And last week, Oregon’s Bureau of Labor and Industries ordered the owners of Sweet Cakes by Melissa to pay $135,000 in emotional damages for refusing to provide a same-sex couple a wedding cake. In addition, Melissa and Aaron Klein were ordered to stop communicating their intent to continue to refuse service to “any person on account of sexual orientation,” according to the board’s ruling.

Melissa Klein, in a statement released on Facebook, said the ruling “effectively strips us of all our First Amendment rights,” adding, “According to the state of Oregon we neither have freedom of religion or freedom of speech.”

Ria Tabacco Mar, an ACLU attorney representing the plaintiffs in the Colorado case, said equal protection outweighs any free speech claim, noting that the cake shop “is operating as a public accommodation.”

“What’s really at issue here is cake shop’s conduct of selling certain products to heterosexual customers and then refusing to sell those same products to lesbian and gay customers.”

Oregon’s labor bureau made the same point in its decision, saying the Sweet Cakes by Melissa case “is not about a wedding cake or a marriage. It is about a business’s refusal to serve someone because of their sexual orientation,” adding that “every person, regardless of their sexual orientation, has the freedom to fully participate in society.”

These cases come at a time of tremendous change for the gay rights movement. A recent CNN poll placed support for same-sex marriage at 58% following the Supreme Court decision in Obergefell v. Hodges. Compared with a Pew research poll in 2004 that put those in favor of same-sex couples having a “legal right to marry” at only 32%, it represents an unprecedented shift in public opinion.

Mar said the ruling is a sign that the justice system is beginning to address “this country’s long and ugly history of discrimination against gay people” and sees the Colorado case as a chance to “achieve full equality” in all aspects of life.

Tedesco, the attorney for Masterpiece Cakeshop’s owner, believes the same-sex marriage decision likely will help his client.

Obergefell “recognizes the First Amendment right of people … who are opposed to same-sex marriage to continue to advocate those beliefs,” the attorney said. He doesn’t think the turn in public opinion will be to his client’s detriment. Rather, as opinion shifts, protecting minority opinions is the First Amendment’s “most important role,” he said.

Tedesco expressed confidence that in the end, the First Amendment will prevail and that “ultimately … we are going to win this case or cases like it.”

Mar said a business owner who is open to the general public cannot then choose whom to serve based on sexual orientation, adding, “they can’t have it both ways.”

By William J. Cadigan