WASHINGTON — The Supreme Court agreed Monday to hear an appeal from a Colorado baker with religious objections to same-sex marriage who had lost a discrimination case for refusing to create a cake to celebrate such a union.
The case will be a major test of a clash between laws that ban businesses open to the public from discriminating based on sexual orientation and claims of religious freedom. Around the nation, businesses like bakeries, florists and photography studios have said, so far with little success, that forcing them to serve gay couples violates their constitutional rights.
The Supreme Court’s decision, expected next year, will again take the justices into a heated battle in the culture wars. On one side are gay and lesbian couples who say they are entitled to equal treatment from businesses that choose to serve the general public. On the other are religious people and companies who say the government should not force them to choose between the requirements of their faiths and their livelihoods.
In a series of decisions culminating in its 2015 ruling establishing a constitutional right to same-sex marriage, the Supreme Court has consistently ruled in favor of gay rights. But it has also said that businesses run on religious principles may sometimes be exempted from generally applicable laws, as when it ruled in 2014 that some companies could not be required to provide free contraceptive coverage for their female workers.
The new case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111, started in 2012, when the baker, Jack Phillips, an owner of Masterpiece Cakeshop in Lakewood, Colorado, refused to create a cake for the wedding reception of David Mullins and Charlie Craig, who were planning to marry in Massachusetts. The couple filed discrimination charges, and they won before a civil rights commission and in the courts.
“This has always been about more than a cake,” Mullins said. “Businesses should not be allowed to violate the law and discriminate against us because of who we are and who we love.”
Phillips, who calls himself a cake artist, argued that two parts of the First Amendment — its protections for free expression and religious freedom — overrode a Colorado anti-discrimination law and allowed him to refuse to create a custom wedding cake.
David Cortman, one of Phillips’ lawyers, said the case concerned fundamental rights. “Every American should be free to choose which art they will create and which art they won’t create without fear of being unjustly punished by the government,” he said.
In 2015, a Colorado appeals court ruled against Phillips. “Masterpiece does not convey a message supporting same-sex marriages merely by abiding by the law and serving its customers equally,” the court said.
In a Supreme Court brief, Phillips’ lawyers said “he is happy to create other items for gay and lesbian clients.” But his faith requires him, they said, “to use his artistic talents to promote only messages that align with his religious beliefs.”
“Thus,” the brief said, “he declines lucrative business by not creating goods that contain alcohol or cakes celebrating Halloween and other messages his faith prohibits, such as racism, atheism, and any marriage not between one man and one woman.”
The brief said Mullins and Craig could have bought a cake from another baker and in fact “easily obtained a free wedding cake with a rainbow design from another bakery.”
In response, the couple’s lawyer wrote that “it is no answer to say that Mullins and Craig could shop somewhere else for their wedding cake, just as it was no answer in 1966 to say that African-American customers could eat at another restaurant.”
In a second development concerning gay and lesbian couples, the Supreme Court reaffirmed on Monday its 2015 decision recognizing a constitutional right to same-sex marriage, ruling that states may not treat married same-sex couples differently from others in issuing birth certificates.
The majority decision was unsigned. Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito, dissented.
The case concerned an Arkansas law about birth certificates that treats married opposite-sex couples differently from same-sex ones. A husband of a married woman is automatically listed as the father even if he is not the genetic parent. Same-sex spouses are not.
The case, Pavan v. Smith, No. 16-992, was brought by two married lesbian couples who had jointly planned their child’s conception by means of an anonymous sperm donor. State officials listed the biological mother on the children’s birth certificates and refused to list their partners, saying they were not entitled to a husband’s presumption of paternity.
The Arkansas Supreme Court ruled against the women, saying that “it does not violate equal protection to acknowledge basic biological truths.”
Obergefell v. Hodges, the 2015 U.S. Supreme Court decision, listed birth certificates among the “governmental rights, benefits, and responsibilities” that typically accompany marriage.
In its unsigned opinion, the majority said Monday that the Arkansas Supreme Court had erred in failing to apply the 2015 decision to birth certificates. “Obergefell proscribes such disparate treatment,” the opinion said. “As we explained there, a state may not ‘exclude same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.’”
Arkansas uses birth certificates, Monday’s opinion said, “to give married parents a form of legal recognition that is not available to unmarried parents.” It continued: “Having made that choice, Arkansas may not, consistent with Obergefell, deny married same-sex couples that recognition.”
In dissent, Gorsuch said the court had acted rashly in not asking for briefs and argument on the question presented in the case.
“To be sure, Obergefell addressed the question whether a state must recognize same-sex marriages,” he wrote. “But nothing in Obergefell spoke (let alone clearly) to the question” addressed by the Arkansas Supreme Court.
“The statute in question establishes a set of rules designed to ensure that the biological parents of a child are listed on the child’s birth certificate,” Gorsuch wrote. “Before the state Supreme Court, the state argued that rational reasons exist for a biology-based birth registration regime, reasons that in no way offend Obergefell — like ensuring government officials can identify public health trends and helping individuals determine their biological lineage, citizenship or susceptibility to genetic disorders.”
“In an opinion that did not in any way seek to defy but rather earnestly engage Obergefell, the state Supreme Court agreed,” Gorsuch wrote. “And it is very hard to see what is wrong with this conclusion for, just as the state court recognized, nothing in Obergefell indicates that a birth registration regime based on biology, one no doubt with many analogues across the country and throughout history, offends the Constitution.”