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    Supreme Court to decide if free speech allows baker to refuse to serve gays

    LAKEWOOD, Colo. — Five years ago, in a decision that has led to a Supreme Court showdown, Jack Phillips refused to use his baking skills to make a wedding cake to celebrate a same-sex marriage, saying it would violate his Christian faith and hijack his right to express himself.

    “It’s more than just a cake,” he said at his bakery. “It’s a piece of art in so many ways.”

    The couple he refused to serve, David Mullins and Charlie Craig, filed civil rights charges. They said they had been demeaned and humiliated as they sought to celebrate their union.


    “We asked for a cake,” Craig said. “We didn’t ask for a piece of art or for him to make a statement for us. He simply turned us away because of who we are.”

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    At first blush, the case looked like a conflict between a state law banning discrimination and the First Amendment’s protection of religious freedom. But when the Supreme Court hears the case this fall, the arguments will mostly center on a different part of the First Amendment: its protection of free speech.

    The government, Phillips contends, should not be allowed to compel him to endorse a message at odds with his beliefs.

    “I’m being forced to use my creativity, my talents and my art for an event — a significant religious event — that violates my religious faith,” he said.

    Gay rights groups regard the case as a potent threat to the equality promised by the Supreme Court in 2015 when it said the Constitution guaranteed the right to same-sex marriage. A ruling in favor of Phillips, they said, would mark the marriages of gay couples as second-class unions unworthy of legal protection.


    After losing the court fight on same-sex marriage, opponents regrouped and reframed their legal arguments, focusing on the rights of religious people. They say, for instance, that many businesses run on religious principles have a free speech right to violate laws that forbid discrimination against gay men and lesbians.

    The argument has met with little success in the lower courts. But the Supreme Court has in recent years been exceptionally receptive to free speech arguments, whether pressed by churches, corporations, pharmaceutical companies, musicians, or funeral protesters. And it has ruled that the government may not compel people to convey messages they do not believe.

    It takes the votes of four justices to add a case to the Supreme Court’s docket, meaning at least that many thought Phillips’s case worthy of review.

    Earlier opinions suggest that the court will be closely divided in the case. The Trump administration, for its part, filed a brief urging the court to rule for Phillips on free speech grounds.

    Craig said the free speech argument was a smoke screen. “It’s not about the cake,” he said. “It is about discrimination.”


    If a bakery has a free speech right to discriminate, gay groups contend, then so do all businesses that may be said to engage in expression, including florists, photographers, tailors, choreographers, hair salons, restaurants, jewelers, architects, and lawyers. A ruling for Phillips, they say, would amount to a broad mandate for discrimination.

    The case will be argued in the late fall and is likely to turn on the vote of Justice Anthony M. Kennedy, who is simultaneously the court’s most prominent defender of gay rights and its most ardent supporter of free speech.

    Mullins and Craig have so far prevailed, winning before the Colorado civil rights commission and in the courts.

    The Colorado Court of Appeals ruled that Phillips’ free speech rights had not been violated, noting that the couple had not discussed the cake’s design before Phillips turned them down.

    The court added that people seeing the cake would not understand Phillips to be making a statement and that he remained free to say what he liked about same-sex marriage in other settings.

    The Alliance Defending Freedom, a conservative Christian group that represents Phillips, said in a brief that the Supreme Court has long recognized a First Amendment right not to be forced to speak.

    A wedding cake created by Phillips, the group said, “announces through Phillips’s voice that a marriage has occurred and should be celebrated.”

    “The government can no more force Phillips to speak those messages with his lips than to express them through his art,” the brief said.

    Mullins and Craig reject the distinctions Phillips draws.

    “Our story is about us being turned away and discriminated against by a public business,” said Mullins, 33, an office manager, poet, musician, and photographer.

    Mullins and Craig, a 37-year-old interior designer, were formally married in 2012 in Provincetown, Mass., because same-sex marriage was not yet lawful in Colorado. But the wedding reception was back home.

    After Phillips turned them down, another baker supplied the cake.