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06 December 2017, 01:06 | Damon Campbell
Justices take up dispute over wedding cake for gay couple
Phillips refused to make the gay couple a wedding cake, citing religious reasons.
One other possible result that emerged from the argument is that the justices could return the case to the Colorado commission for reconsideration if the court finds its first decision was tainted by the religious bias of a commissioner.
In the brief, Acting Solicitor General Jeffrey B. Wall argued Phillips' cakes equated to a form of expression and forcing him to create such an expression for an event that contradicted his religious beliefs was a violation of his First Amendment rights.
Could bakers across the country hang up signs that read: "We do not bake cakes for gay weddings"?
The case pits the religious freedom cases of Jack Phillips, who possesses Masterpiece Cakeshop, against the couple, David Mullins and Charlie Craig, who say Phillips' activities add up to segregation.
Phillips, 61, owner of Masterpiece Cakeshop, is fighting for the rights of "creative artists" to choose what they will sell.
Phillips and the couple, Charlie Craig and David Mullins, were in the courtroom for arguments in the closely watched case that could affect other situations where there's a clash between social conservatives' claim of religious freedom and the LGBT community's fight to preserve hard-won rights.
All three sat in the third row of the court's public section for the roughly 85-minute oral argument inside the packed courtroom.
Phillips then took his case to the Supreme Court and the justices agreed to take it up after mulling it for several weeks.
Justice Sonia Sotomayor told Phillips' attorney: "The primary objective of a food of any kind is to be eaten".
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Chief Justice John Roberts said Catholic Legal Services could be forced to provide free representation to a same-sex couple in a marital dispute.
On the one hand, Kennedy pointed to photographers, florists, graphic designers and even jewelers who might likewise be able to refuse working on a same-sex wedding if the court rules for Phillips. But the Supreme Court, bolstered in April by the addition of stalwart conservative and fellow Coloradan Neil Gorsuch, could be a different story.
But when the subject turned to free exercise of religion, Kennedy was infuriated by a part of the record where one of the commissioners on the Colorado Civil Rights Commission, who ruled against Phillips, noted that using freedom of religion to justify discrimination is a "despicable piece of rhetoric". That signaled a potential compromise in the case - sending it back to Colorado courts to decide whether Phillips was treated unfairly.
The Democratic National Committee also weighed in on the case, vowing to eventually change the law to recognize same-sex spouses' marriages.
"It means that there's basically an ability to boycott gay marriages", said the author of the 2015 opinion extending same-sex marriage nationwide.
"It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, honest conviction that, by divine precepts, same-sex marriage should not be condoned", Kennedy wrote in 2015. So when gay marriage opponents came out of the woodwork, threatening to vote the all-Republican court off the bench if it didn't reconsider its decision - their argument being this was a great opportunity to restrict the effects of Obergefell - the Texas court took note.
Over the past three months, the high court has been flooded with almost 100 "friend of the court" briefs, equally divided between the two sides.
The U.S. Supreme Court will allow a ruling that there is no de facto right to government benefits for legally married same-sex couples in Texas to stand.
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