The Colorado Supreme Court announced Monday that it will not hear an appeal brought brought by a man who refused to sell a wedding cake to a same-sex couple — upholding lower court rulings that concluded this decision was in violation of the state’s sexual orientation nondiscrimination protections.
Jack Phillips of Masterpiece Cakeshop has argued that declining to sell a cake to David Mullins and Charlie Craig (as well as other same-sex couples) was an expression of his religious freedom to refuse to contribute his “artistic expression” to a same-sex wedding, noting that his shop otherwise serves gay people. So far, the courts haven’t found this argument compelling. Phillips lost his case at a lower court in 2013 and then again at the Colorado Court of Appeals last August.
As the Court of Appeals ruled, refusing to serve a same-sex wedding cannot be distinguished from discrimination on the basis of sexual orientation, just like a “tax on wearing yarmulkes is a tax on Jews.” Because his cakeshop does not have a religious purpose, he is not protected by the religious exemptions in the state’s nondiscrimination law.
ACLU staff attorney Ria Tabacco Mar, who represented couple David Mullins and Charlie Craig, praised the news: “The highest court in Colorado today affirmed that no one should be turned away from a public-facing business because of who they are or who they love.”
Meanwhile, the Alliance Defending Freedom (ADF), which defended Phillips, has not given up on the case. Senior counsel Jeremy Tedesco reiterated Monday that “Jack, who has happily served people of all backgrounds for years, simply exercised the long-cherished American freedom to decline to use his artistic talents to promote a message and event with which he disagrees, and that freedom shouldn’t be placed in jeopardy for anyone. We are evaluating all legal options to preserve this freedom for Jack.”
The only option left for Phillips is to appeal to the United States Supreme Court. The Court of Appeals decision relied, in part, on that Court’s marriage equality from last year when it ruled against Phillips. “In Obergefell v. Hodges, the Supreme Court equated laws precluding same-sex marriage to discrimination on the basis of sexual orientation,” the three-judge panel wrote.
In the Obergefell decision, Justice Anthony Kennedy did note that “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.” It’s not clear, however, that he believes that this should allow for discrimination. Even if the Supreme Court took the case and ADF could convince him that it does, the current Court make-up would require that they convince another of the Court’s liberal justices to side with them, or a 4–4 split would let Phillips’ lower court loss stand.