Demonstrators outside the U.S. Supreme Court moments before the court announced its opinion in the same-sex marriage case Obergefell v Hodges. June 26, 2015. Photo by Diego M. Radzinschi/THE NATIONAL LAW JOURNAL.

Two years after embracing same-sex marriage, the U.S. Supreme Court on Monday agreed to deal with a repercussion from its ruling by taking up the case of a Colorado baker who refused to make a custom wedding cake for a gay couple.

Titled Masterpiece Cakeshop v. Colorado Civil Rights Commission, the lawsuit was brought by baker John Phillips, who was found to be in violation of state anti-discrimination laws because in 2012 he declined to make a wedding cake for same-sex couple Charlie Craig and David Mullins.

 

 

Similar cases have been before several state courts in recent years. On February 15, the Washington Supreme Court ruled against a florist who cited his religious beliefs in refusing to make a floral arrangement for a gay couple. In 2014, the high court denied review in a New Mexico case involving a wedding photographer who refused to shoot pictures of a same-sex wedding.

In the Colorado case, the cert petition filed on the store’s behalf by Jeremy Tedesco of Alliance Defending Freedom claimed the state’s action amounted to “outright compulsion of speech” and violated Phillips’ First Amendment freedom of speech and free exercise of religion. Because of his religious beliefs, the brief states, Phillips “declines lucrative business by not creating goods that contain alcohol or cakes celebrating Halloween and other messages his faith prohibits, such as racism, atheism, and any marriage not between one man and one woman.”

Phillips also contends the state law is inconsistently enforced, citing examples of the civil rights commission allowing a black cake artist to refuse to make a cake promoting white supremacy, and letting three cake artists refuse to create a cake with a message that opposed same-sex marriage.

The Colorado commission’s brief responds to the claim by asserting that no speech coercion was involved, because Phillips refused to make any kind of cake for the couple’s wedding – with or without a message. “Had Petitioners refused to serve the couple because they sought a cake with a particular design or which featured a specific message, this case would have presented different legal issues,” Colorado solicitor general Frederick Yarger wrote.

In another brief filed by the couple, American Civil Liberties Union lawyer Leslie Cooper refuted the Phillips claim of infringement of his religious rights. “This Court has made clear that the right to the free exercise of religion does not include a right to disobey neutral and generally applicable laws, including non-discrimination laws.”

Also Monday, the court overturned an Arkansas Supreme Court ruling that allows officials not to include the female spouse of the mother listed on birth certificates. In an unsigned opinion in Pavan v. Smith, the court agreed that the state’s practice did not comport with the equal treatment requirement of the court’s 2015 same-sex marriage ruling Obergefell v. Hodges. Justice Neil Gorsuch, joined by Justices Clarence Thomas and Samuel Alito Jr., dissented.

Copyright the National Law Journal. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

Contact Tony Mauro at tmauro@alm.com. On Twitter: @Tonymauro