Off the Bench | Expect more 'difficult questions' to be raised

Off the Bench | Expect more 'difficult questions' to be raised

This month, I decided to take on a challenge in terms of controversy and complexity. The topic is a case recently decided by the United States Supreme Court. The case highlights changes in our society and the conflicts that can arise from those changes. At the center of the legal controversy is a wedding cake.

We all know that when planning the celebration of a wedding, it is common to make arrangements for a wedding cake. Back in 2012, a man named Jack Phillips owned Masterpiece Cakeshop in Colorado. A couple visited the shop to order a cake to celebrate their upcoming wedding. A conflict arose and the customers left without ordering anything. You see, the couple is Charlie Craig and David Mullins.

Phillips has strongly held religious beliefs that prompt him to close his shop on Sundays and refuse to bake cakes that contain alcohol, celebrate a divorce or have a Halloween theme. Furthermore, because he believes that marriage should be limited to persons of opposite sex, he refused to create a custom cake for Craig and Mullins.

Colorado law prohibits businesses that sell to the public from discriminating based on certain factors, including sexual orientation. Feeling that Phillips' business had done just that, Craig and Mullins complained to the Colorado Civil Rights Division, which found a violation of the state's law. In so ruling, it rejected Phillips' argument that his decision was protected by his rights under the First Amendment. The decision was upheld by the Colorado Civil Rights Commission and a Colorado court.

Phillips sought review by the U.S. Supreme Court, which agreed to hear the case. Following the filing of written briefs, the case proceeded to oral argument Dec. 5, 2017.

According to the records of the Supreme Court, the question presented in the case was "Whether applying Colorado's public-accommodation law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment."

Predictably, the case received much attention when it was first reported. Feelings are intense. People siding with Phillips believe he had taken a stand for his religious beliefs and should be able to assert those rights in this setting. It should be noted that in addition to Phillips' counsel, the solicitor general of the U.S. argued on behalf of his position.

In oral arguments before the Supreme Court, Phillips' attorney made the point that had Craig and Mullins wished to buy a cake off the shelf, he would have sold it to them, because '... in the case of a pre-made cake, that is not compelled speech." That cake would have constituted a product made for sale to the general public. According to the attorney, there is a clear difference if Phillips can be compelled to create a cake. Kristen K. Waggoner stated that the Colorado officials were requiring her client to "...sketch, sculpt and hand-paint cakes that celebrate a view of marriage in violation of his religious convictions."

The Colorado Civil Rights Commission, along with Craig and Mullins, saw things differently. In essence, they argued that when one opens doors to do business with the public, the business cannot discriminate. As stated in the brief of the commission, "This case has nothing to do with the artistic merits of wedding cakes. It is instead about the integrity of a 150-year-old principle: When a business opens its doors to the general public, it may not reject customers because of who they are."

The Supreme Court decided the case Monday. The opinion was authored by Justice Anthony Kennedy. As has been reported, the ruling was in favor of Phillips. The opinion recognized the "difficult questions" involved in balancing principals of anti-discrimination with fundamental rights of expression under the First Amendment.

The decision resolved this case on very narrow and specific grounds. In simple terms, the court's review of the record in the state proceedings resulted in the conclusion that Phillips did not get a fair shake. As Kennedy stated, "The Civil Rights Commission's treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection."

The court was not willing to tolerate this apparent bias. Accordingly, the ruling was overturned. Undoubtedly, there will be future cases in which the "difficult questions" referenced by Kennedy will be raised.

David Bernthal of Mahomet is a retired 21-year federal magistrate. He is a counsel with the Webber & Thies PC law firm and serves as senior mediator and arbitrator with ADR Systems. His email is

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