Justices side with Colorado baker on same-sex wedding cake

J. Scott Applewhite  Associated Press file		The US Supreme Court building

J. Scott Applewhite Associated Press file The US Supreme Court building

That law bars businesses from refusing service based on race, sex, marital status or sexual orientation. Justice Anthony Kennedy authored the majority opinions in both cases.

Craig and Mullins won before the Colorado Civil Rights Commission and the state Court of Appeals, thanks to the state's inclusion of sexual orientation in its anti-discrimination law. These "disputes must be resolved with tolerance, without undue disrespect to honest religious beliefs, and without subjecting gay persons to indignities when they seek good and services in the open market". "The court found a way to rule for the baker without making the first amendment a licence to exempt oneself from anti-discrimination laws".

The Trump administration intervened in the case on Phillips' behalf, and Attorney General Jeff Sessions praised the decision. What it should have said is that while Phillips' beliefs are worthy of respect, they are not a license to engage in discrimination.

Justice Ruth Bader Ginsburg, in her dissent which was joined by Justice Sonia Sotomayor, argued that "when a couple contacts a bakery for a wedding cake, the product they are seeking is a cake celebrating their wedding - not a cake celebrating heterosexual weddings or same-sex weddings - and that is the service (the couple) were denied".

The justices did not, however, clarify whether a cake is the type of expressive act protected as free speech by the First Amendment. The United States Supreme Court took up the decision last June.

While the gay couple said they wanted to live up to the hopes of their community as "accidental gay icons", ABC "Nightline" co-anchor Juju Chang - who visited with them a week before the ruling - says baker Jack Phillips believed there was no other choice: "For him, it's the government forcing him to create cakes that violate his faith". Kennedy quoted a 1993 opinion from the late conservative justice Antonin Scalia arguing that when determining the constitutionality of a government action, the court should consider "the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decisionmaking body".

In 2012, Phillips refused to make a wedding cake for same-sex couple David Mullins and Charlie Craig.

"For Justice Kennedy, that was a warning sign that free exercise of religion and claims of free exercise of religion are not being treated freely", said Charles Haynes, founding director of the nonpartisan Religious Freedom Center in Washington, D.C.

Kennedy, in the Colorado ruling, put forth a similar legal argument, citing the Hialeah case.

Craig said that if Phillips didn't want to sell wedding cakes to gay couples, he shouldn't sell wedding cakes at all. "The court was right to condemn that", said lawyer Kristen Waggoner of the conservative Christian group Alliance Defending Freedom, which represented Phillips.

CNN Supreme Court analyst Steve Vladeck said that with the many different Constitutional questions in this case remaining largely unanswered, the decision was ultimately less meaningful than previously expected. As a result, the decision did not resolve whether other opponents of same-sex marriage, such as florists and photographers, can refuse commercial wedding services to gay couples.

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