Recognizing, perhaps, the weakness of the religious-freedom argument, Mr. Phillips now emphasizes his other First Amendment rights — freedom of speech and expression. His cakes are his artistic expression, he says, and he should not be forced to express ideas to which he is opposed.
Mr. Phillips makes a good case that he is an artist. So might many others who sell the fruits of their labor to those celebrating a wedding. But that doesn’t give any of them the right to refuse service to people protected under an anti-discrimination law. If the couple had asked Mr. Phillips to write a message on their cake endorsing same-sex marriage and he had been punished for refusing, he would have a more plausible First Amendment claim, since he wouldn’t write that for anyone. But Colorado’s law doesn’t compel Mr. Phillips, or any proprietor, to say anything they don’t want to say, or to endorse any specific message. It requires only that they treat all customers equally.
Mr. Phillips claims he already does this. He’s happy to sell any of his pre-made products to gay people, he says, or to bake them a custom cake for another occasion. What he won’t do is custom-bake anything intended for use in a same-sex wedding. As the Colorado Civil Rights Commission said in ruling for Mr. Mullins and Mr. Craig, that’s a distinction without a difference. Since only gay people have same-sex weddings, he’s discriminating against gay people.
Some free-speech advocates argue that this case is simply a matter of deciding which sorts of expression merit First Amendment protection and which do not. Cake bakers may be a close call, but what about photographers? Florists? Caterers? Calligraphers? In fact, cases like these have already been brought around the country. If the justices rule for Mr. Phillips, they will be hard-pressed to find a clear limiting principle. And that would render public-accommodations laws like Colorado’s effectively meaningless.
This, of course, is precisely the objective of the rear-guard action undertaken by religious objectors who, thwarted in their efforts to prevent gay couples from enjoying the rights and benefits that flow from marriage, are now invoking their own constitutional rights to avoid treating those same couples equally in the marketplace.
But equality, and human dignity, are what the cake shop case comes down to. Justice Arthur Goldberg understood this more than 50 years ago in a 1964 case involving a challenge to the Civil Rights Act’s ban on discrimination in public accommodations. Discrimination “is not simply dollars and cents, hamburgers and movies,” he wrote in a concurring opinion. “It is the humiliation, frustration and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public.” The discrimination in that case was based on race; in 2017, it’s hard to see how the same logic does not apply to discrimination based on sexual orientation.
Unfortunately, the Civil Rights Act does not yet protect gays and lesbians, so they must depend on state laws to guarantee equal treatment. Only 21 states and the District of Columbia have public-accommodations laws like Colorado’s, which means that in more than half the country, Mr. Mullins and Mr. Craig would have no recourse if a business refused to serve them because they are gay. Any possible federal protections seem highly unlikely under a Republican Congress. And the Trump administration has decided to side with Mr. Phillips — a rare example of the Justice Department weighing in against a nondiscrimination law.
Tuesday’s case will almost surely be decided by Justice Anthony Kennedy, the court’s perennial swing vote. This time, the split he faces is not only among the other eight justices, but also within himself, as the author of landmark decisions supporting both gay rights and free speech. Even in his emotional 2015 opinion legalizing same-sex marriage, he noted that the view of marriage as a “union of man and woman” is held “in good faith by reasonable and sincere people here and throughout the world.” This need not be a Sophie’s choice. Justice Kennedy can conclude that Mr. Phillips is a reasonable and sincere person, and still decide that businesses may not disregard anti-discrimination laws by cloaking themselves in the First Amendment.