The Supreme Court announced Monday that it will hear oral arguments in the case of Masterpiece Cakeshop, a Colorado “cake art” shop that refused to make a wedding cake for a same-sex couple on religious freedom grounds.
Charlie Craig and David Mullins filed a complaint with the state of Colorado after Masterpiece owner Jack Phillips refused to make a cake for their wedding, and a Colorado court found Phillips guilty of discrimination based on the state’s anti-discrimination law, which includes sexual orientation as a protected class.
Phillips says that he has the right, under the First Amendment’s Free Exercise clause, to refuse a customer who would force him to violate his religious beliefs. In this case, Phillips says, he felt that baking the cake would make him an active participant in a gay wedding—something he opposes because of his Christian beliefs.
Phillips also says the state violated his right to free speech by compelling him, through the targeted use of their statute, to violate his conscience.
Craig, Mullins and the state of Colorado argued that Masterpiece Cakeshop is a public accommodation and cannot discriminate among its customers. The state added that Masterpiece violated Craig and Mullins’s Constitutional right to equal protection.
There have been a number of so-called “cake cases” across the country (and even a “pizza case” in Indiana). Two years ago, the court turned down a similar case from a wedding photographer in New Mexico. But Masterpiece has some quirks that make it perfect for the Supreme Court.
First, Craig and Mullins asked for the case in 2014, well before the Supreme Court decided that states could not deny legal marriages to same-sex partners. They wanted Masterpiece to bake a cake they could take with them to Massachusetts, where gay marriage was legal (and where they were holding their ceremony).
Masterpiece’s Phillips also defines himself as a “cake artist” and not simply a “baker,” according to his attorneys at the Alliance Defense Fund. He considers his cake-making an “expression” of his talents, and he says he’s consistent in applying his Christian beliefs to his work. He doesn’t make Halloween cakes, any cake with a “profane,” “anti-American” or “anti-family theme.”
Whatever SCOTUS decides in this case will have some obvious implications, but taking the case has one very important one as well: It means that, contrary to reports, Justice Anthony Kennedy is unlikely to retire on Monday, at the conclusion of the court’s 2016-2017 season. He’s already said he’s looking towards the future, but who would want to miss this?
After all, the court is pretty well decided on this case, except for Kennedy. Barring a surprise, Roberts, Thomas, Alito, and Gorsuch are likely to side with the individual against the government. And barring a fit of true liberalism that finds a liberal justice standing up for free speech, Ginsberg, Breyer, Kagan, and Sotomayor will likely side with the state.
That leaves Kennedy the deciding vote – and he’s unpredictable. He’s typically a fan of free expression, and particularly the freedom of religion, but was also an important concurring vote in the Obergfell decision that made gay marriage the law of the land. He’ll have his own personal quandry, but he’s unlikely to give up the exciting position of making an impactful determination.