U.S. top court leaves in place Texas ruling questioning gay spousal benefits

An LGBTQ activist waves a rainbow flag on the steps of the U.S. Supreme Court. Ted Eytan via Flickr

In the first, which the Supreme Court considered this morning, the Colorado Civil Rights Division ruled that a cake shop could not refuse to make a wedding cake for a gay couple, calling it discriminatory, because its refusal was based upon the sexual orientation of the customers.

As the Supreme Court wrestled with a clash between religious freedom and LGBT rights on Tuesday, all eyes were on Justice Anthony Kennedy, who might have to reconcile two strands of his jurisprudence.

Mullins and Craig told AFP in an interview this week that they were emotionally devastated after Phillips turned them down in a brief meeting at the bakery. Phillips said he knew right away that he couldn't create the product they were looking for without violating his faith.

In another case involving the scope of protections provided by the Obergefell decision, the Supreme Court in June overturned a state court ruling that had allowed Arkansas to refuse to list both same-sex spouses on birth certificates.

Because same-sex marriage was not yet legal in Colorado in 2012, Justice Samuel Alito noted, Craig and Mullins could not have obtained a marriage license where they lived or gotten a local official to marry them. Kennedy described comments made by one of the seven Colorado commissioners in the case as hostile to religion.

Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Col., is at the center of a Supreme Court case on same-sex marriage that will be heard Tuesday.

However, the Court, rather than ruling in favor of religious liberty, or alternatively in favor of gay rights, might reach a compromise result similar to the recent ones in Kentucky and in Colorado which balanced the two apparently competing interests, says public interest law professor John Banzhaf. But there's more to the MasterpieceCakeshopcase now before the Supreme Court than just cake. Charlie Craig and Dave Mullins filed a complaint with the commission after conservative Christian baker Jack Phillips refused to sell them a wedding cake for their same-sex ceremony.

In one of the most animated oral arguments the high court has held, justices on both sides peppered four lawyers with questions to illustrate how their decision might affect other merchants, such as chefs and florists, and other minority groups, such as Catholics and African Americans. While she argued that the free exercise clause forbids the commission from targeting Phillips "and like-minded believers for punishment", she reserved the bulk of her brief for the free speech clause, perhaps targeting Kennedy, who has at times shown an expansive view of free speech.

As anyone might expect, Mullins and Craig see the case through an altogether extraordinary focal point: separation. "Today's abnegation by the nation's highest court opens the door for an onslaught of challenges to the rights of LGBTQ people at every step". He asked whether, if Philips wins the case, he could put a sign in his shop window saying he doesn't bake cakes for same-sex weddings.

Cole said that whether a cake is an artistic expression is not at issue. "A custom wedding cake is not an ordinary baked good; its function is more communicative and artistic than utilitarian", Solicitor General Noel Francisco argued.

But later in the argument Kennedy said Colorado's human rights commission seemed "neither tolerant nor respectful of Mr. Phillips' religious beliefs" when it found his refusal to bake a cake for the gay couple violated the state's anti-discrimination law.

The conservative members of the court appeared to be more receptive to the argument that Phillips, who describes himself as a "cake artist", should not be forced to create something that conflicts with his religious beliefs.

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