The anti-gay baker is framing his argument around freedom of speech, not freedom of religion. Where that will lead, no one knows.

The recent Supreme Court oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission took the case in a direction neither side may have expected. The facts are well known: Jack Phillips, the owner of Colorado’s Masterpiece Cakeshop, refused to bake a wedding cake for same-sex couple Charlie Craig and David Mullins, based on his religious belief that marriage should be reserved for a man and a woman. The Colorado Civil Rights Commission ruled that Phillips’s action violated a Colorado law prohibiting discrimination based on sexual orientation.

Phillips was clear that his faith motivated his decision, but his lawyers framed the case around freedom of speech, not freedom of religion. The strategy behind that choice was clear. The Supreme Court long ago decided that when a law applies to everyone and was not enacted in order to suppress a particular religious belief, it does not violate religious freedom just because some people may feel compelled to violate it for religious reasons. And surely there is no better example of such a law than one banning discrimination in employment, housing, or public accommodations.

Because of this well-established precedent, Masterpiece Cakeshop’s lawyers made the strategic decision to try to shoehorn their case into a line of Supreme Court decisions striking down, on free speech grounds, laws that forced individuals to communicate a government-approved message. Their briefs described Phillips as a “cake artist” and waxed poetic about the creative energy on display in his creations. They argued that making a wedding cake implicates the baker in celebrating the couple’s marriage; thus, forcing Phillips to sell a wedding cake to Craig and Mullins would force him to use his artistry to send a message – approving a same-sex marriage – he didn’t want to send.