Supreme Court will hear religious liberty challenge to gay weddings

Richard Wolf | USA TODAY

Show Caption Hide Caption SCOTUS to decide Colorado same-sex wedding-cake case The U.S. Supreme Court will consider if a Colorado baker discriminated against a same-sex couple by refusing to make a wedding cake for them. Video provided by Newsy

WASHINGTON -- The Supreme Court agreed Monday to reopen the national debate over same-sex marriage.

The court will hear a challenge from a Colorado baker who lost lower court battles over his refusal to create a wedding cake for a gay couple. Like a New Mexico photographer three years ago, the baker cited his religious beliefs.

The case will be scheduled for the 2017 term that begins in October and most likely will be heard later in the fall.

The justices -- who upheld same-sex marriage nationwide in a landmark 2015 ruling -- apparently decided that laws banning discrimination based on sexual orientation do not mean that merchants' obligations to same-sex couples are baked in the cake.

Colorado and New Mexico are among 22 states with such laws. As a result, Jack Phillips, the owner of Masterpiece Cakeshop, previously lost in his effort to claim that the First Amendment protects his freedom of expression.

Twenty-eight states have no such laws, so gays and lesbians freed to marry by the Supreme Court in 2015 still can face discrimination in employment, housing and public accommodations. A Kentucky appeals court last month upheld a printer's right to refuse to print shirts promoting a gay pride festival, reasoning that his actions did not discriminate based on sexual orientation.

Phillips, like Washington State florist Barronelle Stutzman and others across the country, has argued that his religious objections are paramount. Rather than bake for same-sex weddings, he stopped making wedding cakes altogether, at a substantial revenue loss.

On the other hand, said James Esseks, who directs gay rights issues for the American Civil Liberties Union, "If you go with the bakery here, you've just shot this humongous hole through the nation's civil rights laws."

The key to the outcome of similar cases appears to hinge on whether states have laws barring discrimination against gays and lesbians, or whether they have laws protecting religious liberty.

The decision to hear the case next fall came as a surprise after it had been pending on the justices' calendar for months. The delay led both sides to assume the court would deny the case and was awaiting a conservative justice's dissent.

By agreeing to consider the religious exemption, the court is threatening to reverse the lower courts. Justice Anthony Kennedy -- who was believed to be considering retirement Monday -- will be the key vote once again, as he has been in the past on gay rights issues.

In his landmark opinion striking down state same-sex marriage bans, Kennedy appeared to leave the door open to challenges from those who object to participating in same-sex nuptials.

"It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned," he said.

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The Supreme Court has sided with religious believers before, most recently by allowing an exception to the Affordable Care Act's requirement that most businesses offer health insurance coverage for contraceptives that some equate with abortion.

Phillips' legal battle began several years ago, when Charlie Craig and David Mullins came in to order a cake for their wedding reception. While the wedding was held in Massachusetts, where same-sex marriage had been legal since 2004, the celebration was planned for back home in Colorado.

“We are disappointed that this case continues," Mullins said Monday. On the other hand, Craig said, "It is overwhelming to find yourself going to the Supreme Court."

Phillips, a born-again Christian, refused to bake the cake. Craig and Mullins filed a civil rights complaint and won, first before an administrative court judge, then before the state Civil Rights Commission, and finally before the Colorado Court of Appeals. The state Supreme Court refused to hear the case.

The U.S. Supreme Court passed up its first chance to hear a similar case in 2014 — eight years after Elaine Huguenin and her husband, Jonathan, told a lesbian couple that their Albuquerque photo studio only worked "traditional weddings."

The Huguenins' petition to the Supreme Court was based on their freedom of speech and expression, which they interpreted as the right to decide what messages their photography conveys.