In 2012, when gay couple Charlie Craig and David Mullins attempted to commission a wedding cake from their local Colorado bakery, they unwittingly set off a series of events that would bring them to Capitol Hill. 

The Supreme Court on Tuesday heard arguments in a possibly landmark civil rights case, concerning the discrepancy between business owners' religious freedoms and the rights of LGBT people. On the day in question, Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, refused to make a cake celebrating the marriage of Craig and Mullins, citing his religious beliefs. The couple subsequently filed a complaint with the Colorado Civil Rights Commission, which in 2015 ruled against Phillips. Phillips has since appealed that ruling, and in June the Supreme Court agreed to hear the case.

Masterpiece Cakeshop isn't the only small business that has declined service to same-sex couples on the basis of religion -- something its lawyers argued to the judiciary. Barronelle Stutzman, the owner of Arlene's Flowers in Richland, Washington, refused to provide flowers for a same-sex wedding; she lost her case before the state's Supreme Court in April but will likely seek review from the high court. Elaine and Jonathan Huguenin, the owners of Elane Photography in Albuquerque, refused to photograph a lesbian wedding, the subject of a case the Supreme Court declined to hear back in 2014. All three businesses are being represented by the Alliance Defending Freedom, a Scottsdale, Arizona-based nonprofit that backs conservative legal issues. 

Interestingly, in this case, Phillips's argument centers on freedom of artistic expression as much as it does religious freedom. The ADF insists that Phillips did not discriminate against Mullins and Craig on the basis of their sexual orientation, but rather he refused to provide messaging (in this case, in support of same-sex unions) that he objects to, as should be his constitutional right. Phillips claims that he would have been happy to sell the couple a cake for a different occasion, or a cake that was pre-made. "The path to civility, progress, and freedom does not crush those who hold unpopular views, pushing them from the public square," the ADF said in a statement. "It allows free citizens to determine for themselves the ideas and beliefs deserving of expression, consideration, and adherence."

To be sure, white business owners in the 1960s made similar (unsuccessful) arguments to the high court, responding to federal laws mandating they give equal service to black customers. At stake may be whether the Supreme Court decides that gay rights are less important than the rights of people of color. (Sexual orientation is not federally protected in the same way that race is.) 

The American Civil Liberties Union, which is representing the couple, argues that a ruling in favor of Phillips essentially relegates gays to "second-class status," insisting that Phillips's refusal to bake a gay-themed wedding cake constitutes discrimination on the basis of sexual orientation. 

As of Wednesday, the justices seemed sharply divided along ideological lines, with Justice Anthony Kennedy likely to cast the deciding vote. Despite Kennedy's legacy of promoting LGBT rights, he at times seemed to bend toward the ADF, at one point claiming that the Colorado Civil Rights Commission had been "neither tolerant nor respectful of Mr. Phillips's religious beliefs." You can read the transcript of Tuesday's oral arguments here. Experts say it will likely take until the end of the court's term in June for a final decision to be released.

Sunu P. Chandy, a veteran civil rights attorney and the legal director of the National Women's Law Center in Washington, D.C., says she's concerned that a ruling in Phillips's favor would open the floodgates for businesses to discriminate against LGBT people, women, and minorities more generally. "If Masterpiece Cakeshop can refuse [to bake gay-themed wedding cakes], where are they going to draw the line?" she asks. "We would risk dismantling civil rights narrowly or full-stop, and in either case, it's chipping against decades of precedent."

In her view, the ADF's argument that Phillips is merely exercising his right to freedom of speech doesn't hold water. By that logic, "any company that wants to exclude a particular protected group can simply say that there is artistry in their work," she explains. "Art can be in sandwiches, makeup, or suits. The line [they are trying to draw] is not appropriate, nor does it have any bearing in reality."

Others argue that making these types of distinctions is, in fact, legally necessary. "The Supreme Court's job is to try to draw those lines," says Carrie Severino, chief counsel and policy director at the right-leaning Judicial Crisis Network, in a C-Span debate this week. "We have to respect everyone's beliefs, even the ones we profoundly disagree with. If this is viewed through the lens of a core First Amendment case, that bodes very well for Jack Phillips." 

Published on: Dec 8, 2017