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Justices to Weigh Right to Deny Service -- WSJ

27 Jun 2017 6:32 am
By Jess Bravin 

This article is being republished as part of our daily reproduction of WSJ.com articles that also appeared in the US print edition of The Wall Street Journal (June 27, 2017).

WASHINGTON -- The Supreme Court agreed Monday to consider whether the Constitution's religion clauses allow a bakery to deny service to gay couples.

A Colorado court found that the state's antidiscrimination laws require retail shops like bakeries to serve customers regardless of sexual orientation. But Jack Phillips, an evangelical Christian who runs the Masterpiece Cakeshop in Lakeland, Colo., contends that requiring him to decorate cakes that celebrate same-sex weddings would violate his First Amendment rights to free speech and free exercise of religion.

The grant came on the second anniversary of Obergefell v. Hodges, the 2015 case in which the court, by a 5-4 vote, held that the Constitution provides same-sex couples the same right to marry that heterosexuals enjoy. Another decision announced Monday, requiring Arkansas to treat gay couples the same way it does straight partners when recording their children's births, suggested the court wasn't stepping back from that holding.

In general, when a child is born, Arkansas lists the mother's husband as the father, regardless of biological connection. The state refused to list a lesbian mother's female spouse as a parent when she gave birth through artificial insemination.

"As a result, same-sex parents in Arkansas lack the same right as opposite-sex parents to be listed on a child's birth certificate, a document often used for important transactions like making medical decisions or enrolling a child in school," the court said in an unsigned opinion. "Obergefell proscribes such disparate treatment." The majority found the issue clear-cut enough that it ruled on legal filings alone, without oral argument.

The newest justice, Donald Trump appointee Neil Gorsuch, dissented, arguing that the law on same-sex marriage wasn't sufficiently settled to allow for summary judgment.

"To be sure, Obergefell addressed the question whether a state must recognize same-sex marriages. But nothing in Obergefell spoke (let alone clearly) to the question of whether [the Arkansas birth certificate regulation], or a state supreme court decision upholding it must go," Justice Gorsuch wrote, joined by Justices Clarence Thomas and Samuel Alito, both of whom dissented from Justice Anthony Kennedy's majority opinion recognizing same-sex marriage.

But while Obergefell found that the Constitution provides gay couples "the constellation of benefits that the states have linked to marriage," it said nothing about their right to purchase wedding cakes or flower arrangements from their preferred vendor. That has sparked several disputes involving bakers and florists who have invoked their religious opposition to gay marriage to refuse service to same-sex couples.

The bakery case reflects the rapid change in the legal and cultural landscape over gay marriage. Through the early 21st century, religious conservatives were largely successful in passing legislation that enshrined conventional morality by denying marital rights to a minority population, gays and lesbians.

Now, however, religious opponents of same-sex marriage have adopted the mantle of a disfavored minority, required by antidiscrimination laws in some states to endorse, at least implicitly, a practice they abhor.

Federal law doesn't directly prohibit discrimination based on sexual orientation, but Colorado, along with some 20 other states, provides at least some civil rights protection to gays and lesbians.

In 2012, Mr. Phillips refused to make a wedding cake for Charlie Craig and David Mullins. The couple complained to the state civil rights agency, which found that the cake maker's religious beliefs didn't exempt him from the Colorado Antidiscrimination Act. It requires businesses to serve customers without regard to race, color, disability, sex, sexual orientation, national origin, ancestry, creed or marital status. A state appeals court upheld the agency.

In appealing to the Supreme Court, Mr. Phillips argued that he was no ordinary tradesman but an artist, and that the First Amendment free speech clause prevents the state from compelling him to express a particular idea through his creative work -- in this case, that a marriage of two men should be celebrated.

"Cake making dates back to at least 1175 B.C. Of any form of cake, wedding cakes have the longest and richest history," Mr. Phillips's brief argues. "Only a wedding cake communicates this special celebratory message, slicing a pizza or a pot roast would not have the same effect."

Plenty of other bakeries were willing to take the couple's business, the brief noted. It also said he will sell other cakes to gay customers, as long as they don't involve weddings.

In urging the court to reject the case, the state of Colorado noted that there had been no discussion of what the cake might exactly say, or even if it would have any specific message at all, so that Mr. Phillips had no ground to complain about compelled speech.

The American Civil Liberties Union, representing Messrs. Craig and Mullins, argued that the state's interest in eradicating discrimination outweighed whatever religious discomfort Mr. Phillips might feel from serving the couple.

"It is no answer to say that Mullins and Craig could shop somewhere else for their wedding cake, just as it was no answer in 1966 to say that African-American customers could eat at another restaurant," the ACLU argued, recalling an argument made against the federal Civil Rights Act of 1964, which prohibited most retail businesses from discriminating based on race, color, religion, sex or national origin.

In 2014, the Supreme Court declined to hear an appeal in a similar case from New Mexico, where the state supreme court upheld a discrimination finding under state law against a wedding photographer who refused to shoot a same-sex ceremony.

Write to Jess Bravin at jess.bravin@wsj.com
 

(END) Dow Jones Newswires

June 27, 2017 02:32 ET (06:32 GMT)

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