Baked in the cake: Legal battles follow gay marriage ruling

DENVER — Same-sex marriage is now the law of the land. But that doesn't mean the newlyweds always get their choice of wedding cakes.

Or flowers. Or photographs. Or venues.

Just ask Jack Phillips, a "cake artist" who may represent the next legal hurdle for gay and lesbian couples on their way to wedded bliss.

Phillips, 59, owns Masterpiece Cakeshop, a Lakewood, Colo., bakery that won't design desserts for same-sex weddings. His case was heard this month by the Colorado Court of Appeals. If he loses, he plans to keep appealing — all the way to the Supreme Court if necessary.

"I feel that the Bible is clear — what God defines marriage as," Phillips says as his daughter Lisa works on the latest confections. "For me to violate that would be for me to rebel against God, to take what he's designed and say it doesn't matter."

The problem for Phillips is that Colorado, like 21 other states, has a law barring discrimination on the basis of sexual orientation. His claim that the First Amendment protects his freedom of expression, based on his religious beliefs, failed to convince the Colorado Civil Rights Commission last year.

Twenty-eight states have no such laws, so gays and lesbians freed to marry by the Supreme Court last month still can face discrimination in employment, housing and public accommodations.

Phillips, like Washington State florist Barronelle Stutzman, Kentucky printer Blaine Adamson, Illinois bed & breakfast owners Jim and Beth Walder, and New York family farm owners Robert and Cynthia Gifford, believes his religious objections are paramount. In the meantime, rather than bake for same-sex weddings, Phillips stopped making wedding cakes altogether — and says his revenue has dropped by about 40%.

The issue could be heading toward the Supreme Court in the coming years. Last year, the justices turned down a petition from the owners of a New Mexico photography studio who lost a similar freedom-of-expression case over their refusal to work at a lesbian couple's wedding. Now several other cases such as Phillips' are making their way through state and federal courts.

Gay rights groups predict they will continue to win those lawsuits. "The courts have very consistently held that this is not a free speech or religious freedom issue, that it is about discrimination, and that discrimination is a violation of state laws," says Sarah Warbelow, legal director at the Human Rights Campaign, the nation's largest gay rights organization.

A recent poll conducted by the Newseum Institute found that only 38% of Americans say businesses providing wedding services should be required to serve same-sex couples despite their religious objections, down from 52% in 2013. The court often tends to follow public opinion. But the Supreme Court has sided with religious believers before, most recently by allowing an exception to the Affordable Care Act's requirement that most businesses offer health insurance coverage for contraceptives that some equate with abortion.

"I think it's crucial for the court to weigh in," says Jeremy Tedesco, senior legal counsel at the conservative group Alliance Defending Freedom, who argued Phillips' case in court this month. "I think there's going to be a lot of litigation in this area, and inevitably there are going to be conflicts."

FAITH 'IS EVERYTHING'

Phillips' legal battle began three years ago, when Charlie Craig and David Mullins came in to order a cake for their wedding reception. While the wedding was held in Massachusetts, where same-sex marriage had been legal since 2004, the celebration was planned for back home in Colorado.

Unfortunately for the couple, an earlier incident in Phillips' life made their brief exchange unappetizing. It occurred in 1978, when Phillips — then working the night shift at a local bakery and drinking beer after work at a local bar — says he became a born-again Christian. His religion, he says now, "is everything."

Craig and Mullins filed a civil rights complaint and won, first before an administrative court judge and then before the full commission. It ruled that Phillips must serve same-sex couples, educate his staff and file quarterly reports for two years.

"It's time we moved on from using religion as an excuse to discriminate," Craig said after the latest hearing. "No one should be told they are less than anyone else, especially at a joyous time like a wedding."

James Esseks, who directs gay rights issues for the American Civil Liberties Union, likens Phillips' effort and those of other commercial establishments to posting a sign on the front door: "No wedding cakes for gay people."

"That's the kind of discrimination that we've said is not acceptable in America," Esseks says.

The Supreme Court passed up its first chance to hear a similar case in 2014 — eight years after Elaine Huguenin and her husband, Jonathan, told a lesbian couple that their Albuquerque photo studio only worked "traditional weddings."

The Huguenins' petition to the Supreme Court was based on their freedom of speech and expression, which they interpreted as the right to decide what messages their photography conveys. That's the same principle cited by Phillips and others around the country:

• The former owners of Sweet Cakes by Melissa bakery in Gresham, Ore., were ordered this month to pay $135,000 to a lesbian couple for emotional suffering after being refused a wedding cake.

• Arlene's Flowers of Richland, Wash., was sued for refusing to create floral arrangements for a gay customer's wedding. The florist lost and has asked the state Supreme Court to hear its appeal.

• Hands On Originals, a Christian outfitter in Lexington, Ky., was sued for refusing to print T-shirts for a local gay pride festival. The county human rights commission ruled against its owner, Blaine Adamson, but a county court this year reversed that decision. Kentucky has no anti-discrimination law.

• Liberty Ridge Farm, a working farm in Schaghticoke, N.Y., was sued after owners Robert and Cynthia Gifford refused to host a lesbian couple's wedding. The state Division of Human Rights ruled against the couple, and the case is now before an appellate court in Albany.

'HARD QUESTIONS'

The Supreme Court's ruling last month that states cannot deny marriage licenses to same-sex couples has motivated both sides to seek additional protections from state legislatures. The author of that opinion, Justice Anthony Kennedy, sees nothing wrong with religious believers seeking protection.

"It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned," Kennedy wrote.

Chief Justice John Roberts and the dissenting justices said those words will be of little comfort when someone with a religious objection pushes up against the Supreme Court's edict.

"Hard questions arise when people of faith exercise religion in ways that may be seen to conflict with the new right to same-sex marriage," Roberts wrote. "Unfortunately, people of faith can take no comfort in the treatment they receive from the majority."

One comfort, perhaps, is the motivation the court's decision lends to the effort to secure religious exclusions.

Quena Gonzalez, director of state and local affairs for the conservative Family Research Council, said the ruling "clearly provides an increased sense of urgency to protect conscience protections on marriage, just like we do on other contentious social issues like abortion."

Twenty-two states have laws barring discrimination based on sexual orientation; 21 have laws protecting religious freedom. Two states, Indiana and Arkansas, enacted religious freedom laws earlier this year. Michigan protected adoption agencies that deny gay couples for religious reasons. North Carolina protected magistrates and others who cite religious beliefs in refusing to marry same-sex couples.

In Congress, Sen. Mike Lee of Utah and Rep. Raúl Labrador of Idaho, both Republicans, are sponsoring measures aimed at protecting individuals and businesses opposed to same-sex marriage. Thus far, the bills are far short of claiming majority support.

And in the days since the high court's decision, some state officials have taken steps to protect religious objectors. Kansas Gov. Sam Brownback was the first, blocking the state government from penalizing religious groups that refuse to perform or recognize same-sex marriages.

On the flip side, gay rights groups vow a major push to win non-discrimination laws in states that do not have them. Their latest conquest came earlier this year in Utah, although the law — aimed at employment and housing policies — stopped short of affecting commercial businesses.

The battle resumes today, when Democrats in Congress introduce legislation to ban discrimination against gays and lesbians in federal law, and is likely to continue for years to come.

"It was never about the cake," Charlie Craig's mother, Deborah Munn, wrote on an ACLU blog site. "It was about my son being treated like a lesser person."

“I feel that the United States Constitution guarantees me my freedom of religion, freedom of speech," Phillips says. "It doesn’t say except for when you open your business. ... It’s not just relegated to Sunday morning.”

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