This coming year, the Supreme Court will determine whether a religious baker has the right to refuse a same-sex couple a wedding cake. On Thursday, the Alliance Defending Freedom (ADF), an anti-LGBTQ hate group, submitted its first brief defending the discriminatory actions of its client, Jack Phillips of Masterpiece Cakeshop in Denver.
ADF’s arguments haven’t changed since the Colorado Supreme Court refused to hear their appeal. When Phillips refused to sell a wedding cake to Charlie Craig and David Mullins, he wasn’t discriminating against them for being a same-sex couple, ADF claims. Instead, he was just refusing to design custom artistry that violates his religious beliefs.
This notion that the cake is artistry is at the core of their arguments, which include a claim that Phillips’ freedoms of speech and religion were violated when the Colorado Civil Rights Commission agreed that he had violated the state’s law protecting against discrimination on the basis of sexual orientation. His religious beliefs “inspire him to love and serve people from all walks of life,” the brief insists, and when he “politely explained that he does not design wedding cakes for same-sex marriages,” he was simply engaging in free expression. As they have argued previously in the case, he declined the couple’s request “not because of their status as gay men, but because he could not in good conscience create a wedding cake that celebrates their marriage.”
But ADF’s brief itself admits the very opposite when it recounts how the incident first transpired:
Craig and Mullins were browsing a photo album of Phillips’s custom-design work when Phillips sat down with them at his consultation table. After Phillips greeted the two men, they explained that they wanted him to create a cake for their wedding. Phillips politely explained that he does not design wedding cakes for same-sex marriages, but emphasized that he was happy to make other items for them. Craig, Mullins, and [Craig’s mother, Deborah Munn] expressed their displeasure and left the shop.
There was no version of a wedding cake that Phillips was willing to sell Craig and Mullins — specifically because they were a same-sex couple. They had no opportunity to even discuss the custom design of the cake, and it apparently would not have mattered.
ADF attempts to defend Phillips’ blatant discrimination by asserting it outright, but then couching it in his religious beliefs:
That is why Phillips declined Craig and Mullins’s request before learning all the details of the wedding cake they wanted. They were reviewing photographs of custom cakes when they told Phillips that they wanted him to make a cake for their wedding. When he heard this, Phillips immediately knew that any wedding cake he would design for them would express messages about their union that he could not in good conscience communicate. Expressing such messages would contradict the core of his beliefs about marriage.
This decision was “neither invidious nor based on the slightest bit of animosity,” ADF argues, but was merely “a reasonable exercise of his artistic discretion.”
What ADF neglects to address is whether the same argument would be viable when a baker refuses to sell a wedding cake simply because a couple is made up of people of two different races or religions. The exact same principles would apply in those hypotheticals, so ADF’s argument necessarily implies justification for those forms as discrimination as well. Nevertheless, ADF’s argument depends on the premise that discriminating against a same-sex couple is uniquely justified, relying on Justice Kennedy’s remark in Obergefell, the decision legalizing marriage equality nationwide, that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.”
On that point, ADF argues that the law is biased against people with Phillips’ religious beliefs. “Cake artists who support same-sex marriage may decline to oppose it,” the brief claims, “while those who oppose same-sex marriage must support it.” This false parallel sidesteps the fact that Phillips’ decision was based on who the customers were, not what they were asking him to create. He sold a menu of products, but he didn’t sell all products to all customers, and that was a violation of Colorado law.
But ADF wants the Court to see Phillips as the victim:
For the Commission to brand as discriminatory Phillips’ core religious beliefs, compel him to stop creating his wedding designs, and ostracize him as a member of the community inflicts untold dignitary harm not only on him, but also on his fellow believers.
The unfortunate reality is that Phillips’ beliefs are inherently discriminatory. The law very much permits him to hold them, but at least in Colorado, implementing them in his business practices is a very different story.
The case should be open-and-shut, but if five members of the Supreme Court disagree with the state courts that the law was fair and appropriately enforced, it could begin to unravel decades of protections for all other groups vulnerable to discrimination across the country.