Jack Phillips, owner of Masterpiece Cake in Lakewood, Colo., decorates a birthday cake. (Lindsay Pierce / Denver Post)
“Sorry, guys, I don’t make cakes for same-sex weddings.”
With that blunt comment, Jack Phillips, a baker who designs custom wedding cakes, sent two men out the door and set off a legal battle between religious liberty and gay rights that comes before the U.S. Supreme Court this fall.
The Trump administration last week sided with Phillips and argued that decorating a wedding cake is a type of “expressive conduct,” similar to burning a flag or marching in a parade. If so, they say, the Constitution’s free-speech protection gives the baker, a devout Christian, the right to refuse to participate in the marriage celebration of two men.
But Colorado has barred Phillips from making any more wedding cakes because he refuses to abide by its civil rights law. Since 2008, it has required public businesses to serve all customers equally and without regard to their sexual orientation. The state, allied with the American Civil Liberties Union, says this case is about discrimination, not the religious liberty of a shop owner.
Phillips’ shop, Masterpiece Cakeshop, is full of brightly colored cookies, cupcakes and birthday cakes. These days, it attracts customers from afar who make a special trip to show their support. “Our prayers are with you,” one woman said as she ordered cookies recently.
Phillips, 61, recalled growing up in Lakewood when it was mostly trees, fields and two-lane roads. His bake shop prospered as the city grew into a busy, commercial suburb of Denver. By 2012, he had 10 employees. Then and now, Phillips says, he does not refuse to serve customers for being gay.
“I will serve anyone who comes in,” he said. “And I think I can make friends with them.”
But to Charlie Craig and Dave Mullins, Masterpiece was far from friendly when they stopped by in the summer of 2012.
Craig, 38, grew up in a small town in Wyoming and came to Denver to enjoy the freedom of the big city. He met Mullins through a mutual friend, and they dated for several years. They were planning to be married in Provincetown, Mass. — where same-sex marriages had been legal since 2003 — and then return to Denver for a celebration with their family and friends. A reception planner recommended Masterpiece.
“We went in with a bunch of ideas,” said Mullins, 33. “But [Phillips] came in, asked who the cake was for and then he said he wouldn’t make a cake for us. We were shocked and mortified and got up and left.”
It all took less than 30 seconds. “I admit we were very emotional. We hadn’t gone through anything like. We were embarrassed, and we felt degraded,” Mullins said.
Craig says Phillips “started to explain he had gay friends. And he would sell us cookies or cupcakes. But we left.”
Phillips recalls their anger. “They swore at me, flipped me off and stormed out,” he said.
The conflict took off on social media. “We went home and vented online to tell our friends what happened,” Craig said.
Phillips said his phone started ringing and didn’t stop for several days. “They would ask, ‘Are you the baker who …?’ And then they would call me names and swear. It was very hateful,” he said.
Phillips said he endured death threats, garbage thrown at his shop and thousands of negative messages on his shop’s website.
Mulllins and Craig were also disturbed by the number of ugly, mean comments they received online.
The couple filed a discrimination complaint with the state civil rights commission. “We didn’t want anyone else to have to go through this,” Craig said.
Federal law does not forbid employers or public businesses from discriminating against people because of their sexual orientation. But Colorado and 20 states adopted anti-discrimination laws to protect gays and lesbians. On the national map, these laws mirror the divide between blue and red states. The broader civil rights laws apply mostly along the East Coast from Maryland to Maine, in the upper Midwest and on the West Coast. No state in the South, on the Great Plains or in the Mountain region has such a law, except for Colorado, Nevada and New Mexico.
The Colorado law says no “place of public accommodations,” such as a hotel, restaurant or retail store, may deny people “the full and equal enjoyment of the goods [or] services … because of disability, race, creed, color, sex, sexual orientation, marital status, national origin or ancestry.” In response to the complaint from Craig and Mullins, an administrative judge decided Phillips violated the law by refusing to provide them equal service. The seven-member Colorado Civil Rights Commission and a state appeals court agreed. Phillips “does not convey a message supporting same-sex marriages merely by abiding by the law,” the state court concluded.
Faced with the remarkable rise of the gay rights movement, conservative Christians have begun to push back against that argument, saying the nation’s tradition of religious liberty should shield them from being forced to endorse or participate in any way in a same-sex marriage.
“Tolerance should be a two-way street,” said Kristen Waggoner, lawyer for the Arizona-based Alliance Defending Freedom who represents Phillips. “The 1st Amendment protects Jack’s right to create artistic expression that is consistent with his core convictions.”
Louise Melling, deputy director of the ACLU, warned such an exemption would create “a constitutional right to discriminate founded on your religion. What are the limits to that?”
Supporters of Colorado’s law worry about how a religious exemption could be applied. Could a landlord turn away unmarried couples? Would a Muslim baker be permitted to refuse service to Jews or Christians, or vice versa?
Until this year, religious rights claims had little success in the courts. Lawyers for Alliance Defending Freedom pressed similar lawsuits on behalf of a photographer in New Mexico and a florist from Washington state. Both lost in state courts. And three years ago, the Supreme Court declined to hear a 1st Amendment claim from the photographer who refused to shoot photos of a commitment ceremony for two women.
In January, the high court was due to act on the appeal from Phillips. At the time, the eight justices were waiting for President Trump to announce his nominee to fill the ninth seat. His choice, Justice Neil M. Gorsuch, is a Coloradan, a conservative and a champion of religious liberty. Gorsuch arrived in April, and on the last day of the term, the justices announced they would hear the case of Masterpiece Cakeshop vs. Colorado.