Sunday, June 17

The Wedding Cake Case: Free Speech vs Gay Rights


Justice Anthony Kennedy in the US Supreme Court, the author of all the court’s major gay rights decisions, weighed up the first amendment artistic freedom claims of a Colorado baker who refused to make a wedding cake for a same sex couple against the couples right not to be discriminated against. Protestors on both sides gathered outside the court.

Kennedy voiced concerns about respecting the religious beliefs of the baker, Mr Phillips, as well as the couple’s dignity.

The Trump administration is supporting Phillips in his argument that he cannot be forced to create a cake that violates his religious beliefs. This seems to be the first time the federal government has asked the justices to create an exception to an anti-discrimination law.

The case is likely to affect photographers and florists who have voiced similar objections.  Justices Ruth Bader Ginsburg and Elena Kagan examined other categories of people involved in weddings to ask if they could also be able to refuse a same-sex couple. It was suggested that the distinction between a cake baker and the person who makes the menus and the invitations, for example, is that the former engages in free speech but the latter does not. Justice Kagan however, countered that baking may not be ‘speech.’

Justice Stephen G. Breyer said that there was no way to rule for Mr. Phillips without inflicting grave damage on equality. Justice Kennedy raised concerns over allowing an ‘ability to boycott’ because so many of the examples considered involve free speech.

The problem however was that same-sex marriage was not legal in Colorado in 2012 so the couple could not have obtained a marriage license where they lived or found a local official to marry them. This turned Justice Kennedy’s attention towards the religious beliefs of the baker. Kennedy stated: ‘Tolerance is essential in a free society’ and ‘tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.’

The possibility of returning the case to the commission for reconsideration because its first decision was tainted by religious bias was considered. The couple made a complaint to Colorado’s civil rights commission when Phillips first refused to serve them. Justice Kennedy however, was concerned that the commission had been ‘neither tolerant nor respectful of Mr. Phillips’s religious beliefs.’  The Justice seemed concerned by a part of the commission’s ruling that required Mr. Phillips to retrain his employees to tell them that a state anti-discrimination law overrode their religious beliefs. Justice Ruth Bader Ginsburg on the other hand, said that the requirement was routine. ‘All he has to instruct them’ she said, ‘is this is what the law of Colorado requires.’

The judgement is due by late June.

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About Author

Hannah is a third-year law student at the University of York and has a particular interest in public law and international criminal law. She joined Legal Loop in August 2017.

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