How a wedding cake for gay couple came to be centre of a constitutional debate in US
Does a wedding cake trigger constitutional questions that deserve to be debated by a Supreme Court? It boggles the mind that a question involving a wedding cake has now been "accepted fit" by the Supreme Court of United States — SCOTUS — on June 26, to be heard in October. This is one of the 80 cases accepted by the SCOTUS out of the 8,000 or more filings.
Law in a free society can be "Law in La La Land", it seems.
In July 2012, Charlie Craig and David Mullins visited Masterpiece Cakeshop, a bakery in Lakewood, Colorado, and requested its owner, Jack C Phillips, to design and create a cake to celebrate their same-sex wedding. Phillips declined, telling them that he does not create wedding cakes for same-sex weddings because of his religious beliefs, but advised Craig and Mullins that he would be happy to make and sell them any other baked goods.
Feeling discriminated against, Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division, alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act (CADA).
The parties did not dispute any material facts. Masterpiece and Phillips admitted that the bakery is a place of public accommodation and that they refused to sell Craig and Mullins a cake because of their intent to engage in a same-sex marriage ceremony. After the parties filed their pleadings, for summary judgment, the Administrative Law Judge (ALJ) issued a lengthy written order finding in favour of Craig and Mullins.
The ALJ’s order was affirmed by the Colarado Civil Rights Commission. The Commission’s final cease and desist order required that Masterpiece (1) take remedial measures, including comprehensive staff training and alteration to the company’s policies to ensure compliance with CADA; and (2) file quarterly compliance reports for two years with the rights division describing the remedial measures taken to comply with CADA and documenting all patrons who are denied service and the reasons for the denial.
The appeal was filed by Masterpiece/Baker before the Colarado Court of Appeals and heard by a bench of three judges. The case juxtaposed the rights of complainants, Craig and Mullins, under Colorado’s public accommodations law to obtain a wedding cake to celebrate their same-sex marriage against the rights of respondents, Masterpiece Cakeshop Inc., and its owner Phillips, who contended that requiring them to provide such a wedding cake violated their constitutional rights to freedom of speech and the free exercise of religion.
Fundamentally, it was easy pickings for the hierarchy of courts to look at the relevant provision in the state law — “it is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual… because of... sexual orientation... the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation” — and rule that Masterpiece was in breach of the anti-discriminatory legislation.
But, Masterpiece did not easily acquiesce. Phillips contended that compelling him to make the wedding cake for the couple entering into same-sex marriage was an infringement of his fundamental right to freedom of speech and interference with his right to religious faith and beliefs. Subtlest arguments were advanced before the appellate court that "constitutional issues of high importance arose" and the conduct of Masterpiece did not go against the same-sex couples, but only sought upholding of the baker’s personal convictions. The First Amendment of the United States Constitution prohibits laws “abridging the freedom of speech”, which was sacrosanct.
Placing reliance on a host of case law on the subject — first amendment principles relating to free speech and the latest and much-publicised verdict of the SCOTUS in Obergefell versus Hodges — where the Supreme Court ruled that laws precluding same-sex marriage are discrimination on the basis of sexual orientation. Observing that the “denial of the right to marry to same-sex couples” is a “disability on gays and lesbians” which “serves to disrespect and subordinate them”.
The court stated: “The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation." "Were the court to stay its hand... it still would deny gays and lesbians many rights and responsibilities intertwined with marriage."
It was held that Masterpiece was not compelled "to communicate a message supporting same-sex marriages merely by abiding by the law and serving its customers equally, and therefore, it did not abridge his free speech".
Masterpiece admitted that its refusal to provide a wedding cake for Craig and Mullins was pursuant to the company’s policy to decline orders for wedding cakes for same-sex weddings and marriage ceremonies. The record reflected that Masterpiece refused to make wedding cakes for several other same-sex couples.
However, Masterpiece insisted that “he was happy to create other items for gay and lesbian clients". But his faith required him “to use his artistic talents to promote only messages that align with his religious beliefs".
Phillips declined 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.
It was also argued that the couple could have bought a cake from another baker and in fact “easily obtained a free wedding cake with a rainbow design from another bakery". However, none of these submissions sold before the appellate court.
The appellate court pointed out that Masterpiece’s refusal to create a wedding cake for Craig and Mullins “because of” their sexual orientation was prohibitive of CADA from basing their refusal to serve customers on their sexual orientation, and Masterpiece violated Colorado’s public accommodations law by refusing to create a cake for same-sex wedding celebration.
As for the apprehension and expression of Phillips that his making the wedding cake for the occasion of marriage of the same-sex couple — could be construed against his religious beliefs in not accepting same-sex marriage — it was highlighted “that the act of designing and selling a wedding cake to all customers free of discrimination does not convey a celebratory message about same-sex weddings likely to be understood by those who view it. We further conclude that, to the extent that the public infers from a Masterpiece wedding cake a message celebrating same-sex marriage, that message is more likely to be attributed to the customer than to Masterpiece".
In effect, the twin constitutional challenges that compulsion to make the cake for the same-sex couple was transgressing his right to "free speech" and "religious beliefs" were soundly beaten of.
But Masterpiece has not given up yet. The order of the appellate court on August 13, 2015, was challenged before the SCOTUS — which is what the latter has found fit to be heard in October.
Is it judicial activism gone too far, or there is never a too high price to pay for liberty and human rights? Take your pick as is your orientation.
The late Antonin Scalia — a conservative to the core and a self-confessed, proclaimed originalist — always said that before the SCOTUS, the result of the litigation never mattered. Who won or lost was irrelevant? (Like whether the wedding cake gets made by Masterpiece in the end or not.) What the SCOTUS took up and decided was to "settle the law of the land". And from what the forefathers has laid out for "We the People in the Constitution", over 200 years ago, the "constitutional principles were a piece of cake".
Now, it seems that a piece of "wedding cake"— not made — has travelled all the way up to the SCOTUS, and come October, we can look forward to constitutional principles being carved out of this cake.
Law is surely no piece of cake, if you ask me.