Using ‘free speech’ as a cover for discrimination – The Boston Globe – The Boston Globe

Jack Phillips is the operator of Masterpiece Cakeshop in Lakewood, Colo. The US Supreme Court has agreed to hear an appeal from Phillips, who has religious objections to same-sex marriage and had lost a discrimination case for refusing to create a cake to celebrate such a union.

Colorado cake maker Jack Phillips is devout about his artistry in icing and fondant. Hes also devout about his Christian faith, so much so that he believes it would be deeply sinful to prepare a wedding cake for a same-sex couple. Last week, the US Supreme Court agreed to hear his case, and arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission one in a series of efforts to fence in the galloping acceptance of same-sex marriage could come as soon as this fall.

Events were set in motion in 2012, when David Mullins and Charlie Craig, who planned to marry in Massachusetts, stopped into Masterpiece Cakeshop in Lakewood, Colo., to order a wedding cake. Phillips refused to serve them, even though Colorado law says businesses open to the public cant discriminate based on sexual orientation.

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Phillips, of course, has a constitutionally protected First Amendment right to profess his faith. And hes made it clear theres no room for compromise, telling The New York Times: I believe that the Bible teaches that homosexuality is wrong, and that to participate in a sin is wrong for me. For me to take part in it against my will is compelling me to make a statement that I dont want to make. But theres another right hanging in the balance, rooted in the 14th Amendment and codified by the Supreme Court in 2015: the right to same-sex marriage.

Historically, courts have tried to strike an equitable balance between expanded civil rights and religious expression. Since the Civil Rights Act was enacted, in 1964, lawmakers and the courts have allowed some exemptions but have tended to draw the line when claims of religious freedom are used to justify discrimination. As James Esseks, director of the ACLU LGBT project put it: You have freedom to believe and to preach your faith, until your actions harm other people.

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The Supreme Courts Obergefell v. Hodges decision two years ago was transformative, addressing vital claims to liberty and dignity for millions of gay Americans. Phillipss protest also comes at a time when national support for same-sex marriage is at an all-time high, according to a recent Pew Research Center poll. A majority of Americans surveyed 62 percent now support gay marriage, including two-thirds of Catholics and 68 percent of mainline Protestants. And while white evangelical Christians arent exactly waving rainbow flags, support for same-sex marriage has grown from 27 percent in 2016 to 35 percent today, according to Pew.

Theres a broader First Amendment principle at stake, however. The Phillips case is another alarming assault on freedom of speech, part of an effort by businesses large and small to turn that most essential constitutional right into an antiregulatory tool. This compelled speech doctrine is already making its way through Congress and the court system, most notably in a case involving business groups fighting a 2010 law that requires them to disclose whether their products contain minerals linked to warlords in the Democratic Republic of the Congo. In June, the US House passed the Financial CHOICE Act, which includes a pro-business provision to repeal the conflict-mineral disclosure. The US Senate should reject the bill, which also rolls back Dodd-Frank reforms. And the Supreme Court justices should recognize that the Masterpiece Cakeshop case is not about forcing speech, but about banning discriminatory conduct. The Colorado cakemaker should be free to worship as he pleases, but not to abrogate settled civil rights law under the guise of the First Amendment.

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