When the Supreme Court convenes on the first Monday in October to begin the 2017 term, the Court will hear a very important case in which the Justices will decide the fate of a baker in Colorado who refused to make a wedding cake for a same-sex couple.

The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, deals with the conflict between the religious conscience of an individual and the equal rights of a same-sex couple. The case has been popularized in the media as the refusal of a baker to bake a cake to celebrate the wedding of a same-sex couple. However, from my perspective, there is more to the story than what appears in the news.

Lady Justice

Many people are unaware of the details that led this case to reach the Supreme Court. I have been following the merits of this case through several posts in the SCOTUS Blog. The background of this case is as follows:

Five years ago, Jack Phillips, the owner of Masterpiece Cakeshop in Colorado, refused to make a specially designed wedding cake to celebrate the marriage of a same-sex couple. His refusal was based on his Christian faith. Phillips believes that marriage is between a man and a woman and that making a specially designed wedding cake to celebrate the marriage of a same-sex couple was an endorsement of same-sex marriage.

The same-sex couple filed civil rights charges with the Colorado Civil Rights Commission. The Commission ruled that Phillips had violated a state law banning discrimination based on sexual orientation. As Rick Garnett wrote in his article, “Symposium: Conscience, conditions, and access to civil society,” published in the SCOTUS Blog:

[T]he Colorado Civil Rights Commission determined that he had discriminated based on sexual orientation in a place of public accommodation in violation of that state’s Anti-Discrimination Act. He was ordered to “cease and desist” such discrimination, to take various “remedial measures,” including retraining his staff, and to file “compliance reports” documenting all service denials and the reasons for them. As a result, and – as he sees it – rather than dis-integrate his creativity and his conscience, he stopped designing custom cakes and lost a substantial share of his business. The question before the justices is whether the commission’s order violates the First Amendment.

This case has generated much interest among legal scholars. A group of 34 legal scholars filled a brief of amici curiae in support of Phillips’ case (you can read the brief here). The amici cite the Old Testament, specifically, the case of Daniel and his friends in Nebuchadnezzar’s court, in order to petition the Court to decide in favor of Phillips:

Thus, the book of Daniel in Hebrew scripture narrates the story of Hananiah, Mishael, and Azariah, (given the Babylonian names of Shadrach, Meshach, and Abednego), who were thrown into a fiery furnace for refusing to bow before a golden statue. In late antiquity, Christians were often required to burn incense to pagan idols or to pay obeisance to divinized emperors; this practice seemed perfectly innocuous to Roman authorities but was a sacrilege to Christians (p. 12).

It is unfortunate that many people will not read the brief submitted by the amici curiae. Their argument shows that Phillips has a strong case based on many legal precedents. The main argument of the amici is based on Barnette:

It is axiomatic that in the American constitutional system, “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein” [W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)].

The amici argue that the case is not about any deprivation of a needed product or service since Phillips was willing to make a cake for the wedding. What he was not willing to do was to use his gifts and creativity to design a special cake that would indicate (in his view) his endorsement of same-sex marriage. That, he refused to do. As the amici wrote:

The case is rather about messages or expression—about the offense incurred because of Phillips unwillingness to use his artistic gifts to celebrate a wedding he believed to be contrary to God’s law. And the remedy sought and awarded is calculated simply and solely to compel Phillips to celebrate such weddings in the future.

In short, this lawsuit is little more than an effort to force Phillips to use his artistic gifts to celebrate same-sex weddings, contrary to his convictions. Although framed in terms of “discrimination,” this fundamental violation of the commitment articulated in Barnette cannot be justified by any compelling state interest in eradicating discrimination [p. 9].

Jack Phillips is emphatically not the much feared merchant who refuses to serve people who are black, or female, or gay. He merely objects to using his artistic gifts to design and create cakes, no matter who might request them, that send messages contradicting his traditionalist Christian convictions. In other instances such messages have included or might include racist, antipatriotic, or atheistic messages; in this instance the message happens to be one celebrating same-sex marriage [p. 10].

Four votes are required for the Supreme Court to accept a case for decision. This means that Justice Anthony M. Kennedy may have the decisive vote in this case. Justice Kennedy wrote the majority opinion in Obergefell v. Hodges, a case that established the constitutional right to same-sex marriage. In that decision Justice Kennedy wrote: “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here.”

At prima facie this case would be easy to decide: Phillips has the right not to bake a cake for a same-sex couple. But in fact, the case is not as easy as it appears prima facie. We live in a pluralistic society in which, at times, the rights of the many contradict the rights of the few and the rights of the few contradict the rights of the many.

Although I am not a legal scholar, I believe that Barnette offers a solution to this case: “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” This was the solution proposed by the amici.

Phillips reached his “conclusion based on decent and honorable religious or philosophical premises,” thus, neither his decision nor his belief should be “disparaged” in this case. To force Phillips to use his gifts and talents to create, by word or act, a special cake to celebrate a same-sex wedding seems to me a violation of his First Amendment which protects religious freedom and the rights of free speech of every citizen in America.

Masterpiece Cakeshop v. Colorado Civil Rights Commission is a case in which the Justices of the Supreme Court will need the wisdom of Solomon to make the right decision.

Claude F. Mariottini
Emeritus Professor of Old Testament
Northern Baptist Seminary