If “free speech” allows a baker to discriminate……

  A Baker Says His Cake Is His Art……

LAKEWOOD, Colo. — Jack Phillips bakes beautiful cakes, and it is not a stretch to call him an artist. Five years ago, in a decision that has led to a Supreme Court showdown, he refused to use his skills to make a wedding cake to celebrate a same-sex marriage, saying it would violate his Christian faith and hijack his right to express himself.

“It’s more than just a cake,” he said at his bakery one recent morning. “It’s a piece of art in so many ways.”

The couple he refused to serve, David Mullins and Charlie Craig, filed civil rights charges. They said they had been demeaned and humiliated as they sought to celebrate their union.

“We asked for a cake,” Mr. Craig said. “We didn’t ask for a piece of art or for him to make a statement for us. He simply turned us away because of who we are.”

At first blush, the case looked like a conflict between a state law banning discrimination and the First Amendment’s protection of religious freedom. But when the Supreme Court hears the case this fall, the arguments will mostly center on a different part of the First Amendment: its protection of free speech.

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The government, Mr. Phillips contends, should not be allowed to compel him to endorse a message at odds with his beliefs.

“I’m being forced to use my creativity, my talents and my art for an event — a significant religious event — that violates my religious faith,” Mr. Phillips said.

Gay rights groups regard the case as a potent threat to the equality promised by the Supreme Court in 2015 when it said the Constitution guaranteed the right to same-sex marriage. A ruling in favor of Mr. Phillips, they said, would mark the marriages of gay couples as second-class unions unworthy of legal protection

After losing the court fight on same-sex marriage, opponents regrouped and reframed their legal arguments, focusing on the rights of religious people. They say, for instance, that many businesses run on religious principles have a free speech right to violate laws that forbid discrimination against gay men and lesbians.

The argument has met with little success in the lower courts. But the Supreme Court has in recent years been exceptionally receptive to free speech arguments, whether pressed by churches, corporations,pharmaceutical companies, musicians or funeral protesters. And it has ruled that the government may not compel people to convey messages that they do not believe.

It takes the votes of four justices to add a case to the Supreme Court’s docket, meaning at least that many thought Mr. Phillips’s case worthy of review. Earlier opinions suggest that the court will be closely divided in the case. The Trump administration, for its part, filed a brief urging the court to rule for Mr. Phillips on free speech grounds.

Mr. Craig said the free speech argument was a smoke screen. “It’s not about the cake,” he said. “It is about discrimination.”

If a bakery has a free speech right to discriminate, gay groups contend, then so do all businesses that may be said to engage in expression, including florists, photographers, tailors, choreographers, hair salons, restaurants, jewelers, architects and lawyers. A ruling for Mr. Phillips, they say, would amount to a broad mandate for discrimination.

to continue this article from the NYTimes, see https://www.nytimes.com/2017/09/16/us/supreme-court-baker-same-sex-marriage.html

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