A baker who refused to make a cake for a gay couple takes his case to the supreme court on the basis of free speech – and might set a harmful precedent

Perhaps never since Marie Antoinette has cake been so important in politics.

On 5 December, the US supreme court will consider whether a private business can deny services to an LGBTQ couple on the grounds that it conflicts with their religious beliefs. The business in question is a cake shop in Colorado whose owner sees his cakes as a form of artistic expression and believes a state anti-discrimination law violates his first amendment rights.

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“This case is not about a cake,” said Louise Melling, deputy legal director of the American Civil Liberties Union. “The law doesn’t say anything about the words ‘icing’ or ‘frosting’ … all the law says is if you make a product, and you offer that product to the public, when the customer comes in, you can’t turn the customer away based on who the customer is.”

The plaintiff, Masterpiece Cakeshop, is seeking an exception from a public accommodations law on the basis of free speech. Public accommodations laws were first instituted during the civil rights era to prohibit businesses from refusing to serve African Americans customers.

Under Colorado law, those protections extend to the LGBT community as well. But cakeshop owner Jack Phillips wants to see that change, saying serving a gay couple would violate his Christian beliefs. And though it might seem like a religious freedom case, the legal underpinning of Phillip’s argument will be in free speech rights under the first amendment.

At a glance the issue might seem trivial – the couple could just go to another cake shop. But the underlying principle, which amounts to a constitutional challenge to LGBTQ nondiscrimination law, is far more profound. The court now has the power to turn that challenge into new legal precedent for the entire nation.

“What’s at stake here is whether the constitution protects the right to discriminate,” said Melling. “This is a completely radical proposition.”

Phillips is represented by anti-gay activist Alliance Defending Freedom, a far-right group that has previously argued for the criminalization of homosexuality and the mandatory sterilization of transgender people.

Some observers were surprised when in September the US government filed an amicus brief siding with Masterpiece Cakeshop, suspecting the brief of being less legal argument than political pandering, aimed at convincing readers the anti-discrimination laws targeted in the case should not be thought of as part and parcel of “race-based discrimination”, which, the brief’s authors noted, “may survive heightened first amendment scrutiny”.

It was the latest in a series of moves by the Trump administration to roll back gay rights achieved under Barack Obama.

“What the US government does, which the bakery does not do in its brief, is openly say ‘race is different’,” said Melling. “There’s nothing in the theories that are being presented by the bakery in this case, or other parties in other cases, that would limit these arguments to LGBT couples in this very context.”

In fact, such concerns would seem to be quite appropriate. The supreme court has not previously ruled that for-profit businesses have a right to discriminate against any group under the constitution’s freedom of speech clause. And in carving out an exception to that rule, through a freedom of speech exemption, the case has the potential to set a whole new precedent for civil rights law as we know it, undermining the legal premise for basic protections for any minority group.

Perhaps the justice department’s unusual move shouldn’t come as a shock. In a closed-door speech to ADF over the summer, the attorney general, Jeff Sessions, thanked the organization – deemed a hate group by the Southern Poverty Law Center – for its “important work”, pledging to defend its “freedom of conscience”.

The case is not the first to mount such challenges to LGBTQ anti-discrimination laws, citing religious faith. Three years ago, for instance, the high court declined to hear the appeal of a New Mexico photographer – also represented by ADF – who refused his services to a same-sex couple. A key difference is that the legal case was argued on the grounds of religious liberty. In grounding the cake case in first amendment rights now, ADF is trying something new.

But Rebecca Cokley, a disability rights activist with the liberal Center for American Progress, which hosted a panel on Thursday, sees a lot that’s familiar too. “This is just the latest in a decades-long attempt to undermine public accommodations law,” she said. “It’s an old staircase in a new building.”

The staircase began in 2012, when newly engaged Charlie Craig and David Mullins went out to get their wedding cake at the Masterpiece Cakeshop in Colorado and were turned away. In refusing them, the owner explained that he didn’t sell his cakes to same-sex couples.

According to Craig’s mother, Debbie Munn, who had joined her son for what was supposed to be a joyous occasion, her son took it hard. “I noticed Charlie’s shoulders were shaking,” said Munn in a recently published account. “I soon realized he was crying. All I could do was embrace him and tell him I loved him and that we would get through this. As a parent, no matter how grown your children are, you want to shield them from harm.”

Craig and Mullins eventually filed a complaint with the Civil Rights Commission of Colorado, one of 20-some states with laws banning discrimination based on sexual orientation; and Phillips was duly ordered to cease discriminatory practices. But Phillips appealed against the order citing his first amendment rights. And though Colorado courts sided with the commission, this summer, the supreme court signed on to hear the case.

The plaintiff’s side has sought to draw a line between its wedding cakes and other products sold by its small business; under such logic if the couple were to return and ask for, say, a birthday cake, they’d have encountered no difficulty.

It remains to be seen whether such distinctions will prove persuasive. But once again Justice Anthony Kennedy is expected to be the deciding vote. And with a case history tugging him in both directions, the case has observers on the edge of their seats.

A devout Catholic, Kennedy has shown sympathy to religious considerations, and often sided with small business owners in the past. However, he has also been a reliable defender of gay rights, casting the deciding vote for the sweeping Obergefell decision that legalized same-sex marriage everywhere in America.

Dariely Rodriguez, director of the Economic Justice Project at the Lawyers’ Committee for Civil Rights Under Law, said she finds the free speech exemption element of the case particularly troubling, as it’s beyond even the scope of businesses with strong religious convictions.

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“It could really apply to any business owner who has a strong opinion period,” Rodriguez said of the free speech exemption. “It’s not a theoretical concern.”

Masterpiece Cakeshop is just one of a number of recent cases at the intersection of religious freedom and anti-discrimination law. In 2015 in Florida a federal discrimination lawsuit against a gun retailer who declared his shop a “Muslim Free Zone” was dismissed after the owner argued, successfully, that his sign was protected by the first amendment. And more recently, the American Civil Liberties Union brought a federal case against the owners of a gun range after a Muslim man was denied patronage based on faith.

“It’s absolutely likely that if the court rules in favor of the baker we will see more cases like that,” said Rodriguez. “It would definitely apply to businesses outside of the wedding context. It would apply to culinary arts, to hairdressers, to barbers, to fashion boutique stores – it’s just endless.”