What if Scardina requested a plain white cake, pressed Justice Maria E. Berkenkotter, but disclosed she would use it to celebrate her transition.”That’s a harder case,” acknowledged Warner. “Here, the customer is acknowledging this cake expresses a message —” To her,” interjected Berkenkotter, suggesting there would be no message attributable to the cake maker in that scenario.
Direction from SCOTUSA central issue in the appeal is the U.S. Supreme Court’s decision last year in 303 Creative v. Elenis, a case out of Colorado involving Christian website designer Lorie Smith who wanted to refuse to create websites for same-sex weddings without running afoul of CADA. The conservative-majority court sided with Smith, finding the custom wedding websites were “pure speech” protected by the First Amendment.
The parties in Phillips’ appeal disputed whether 303 Creative would control the outcome in his case. Scardina contended that unlike Smith’s case, which relied heavily on an agreement between Colorado and Smith about the details of her conduct, the case against Phillips had resulted in factual findings by a trial judge that Phillips discriminated on the basis of Scardina’s transgender status.
Justice Richard L. Gabriel raised a concern: Must business owners always honor customers’ requests for speech-based services they find offensive? “Someone comes in to a Jewish baker and says, ‘I want you to make whatever cake and I’m doing it for my neo-Nazi celebration,'” he said. “That’s not speech in your view? It doesn’t matter what they (customers) say as long as the cake doesn’t have an expressive meaning?”
Neo-Nazi is not a protected status in Colorado,” responded McHugh. But “does this mean that in some extreme instances, somebody who endorses bigoted religious views might be able to force somebody to make a cake for a bigot? Yes, because the law is generally applicable.
Ultimately, Phillips advocated for the Supreme Court to recognize “message-based objections” in the marketplace. He argued nearly three dozen times in his written briefs that he was being “punished” for his religious views.”The objection,” summarized Justice Carlos A. Samour Jr., “is to making the cake with the knowledge of what it’s gonna be used for?”
More specifically,” added Justice Monica M. Márquez, “that the design of the cake incorporates that message.”
Several outside entities weighed in on both sides of the case.In support of Phillips, multiple Republican state lawmakers asserted governments “often elevate” sexual orientation and gender identity above religious affiliation. Cyndol Haller, a baker in Florida, said she was drawn into a court battle in her state because she was reluctant to make a cake with an anti-LGBTQ+ message.
The case is Masterpiece Cakeshop, Inc. et al. v. Scardina