Same-sex marriage foes stick together despite long odds

Richard Wolf | USA TODAY

WASHINGTON — When a Colorado "cake artist" who refuses to serve same-sex weddings brings his case to the Supreme Court next month, he'll have a tight-knit fraternity of florists, bakers and memory makers in his corner.

The group — ranging from a Kentucky designer of custom Christian T-shirts to Minnesota videographers who say their company exists to glorify God — has much at stake in Jack Phillips' uphill crusade against his state's anti-discrimination law.

Over the past five years, they have suffered a nearly unbroken string of defeats at the hands of human rights commissions and local, state and federal courts. Again and again, authorities have ruled that merchants offering goods and services to the public must serve all comers.

The losses have driven some same-sex marriage opponents out of business and cost others their standard of living and peace of mind. Their stories find little sympathy from the gay rights movement, whose leaders say the solution is simple: stop discriminating.

But the nation's highest court, closely divided since 2013 over same-sex marriage, offers the group potential salvation. Even a narrow ruling in favor of Phillips' Masterpiece Cakeshop could extend to others who say their artistic creations deserve First Amendment protections.

It wasn't surprising, then, that the soft-spoken Phillips received two standing ovations last week at Colorado Christian University, just a few minutes from the bakery where he no longer sells wedding cakes while his case is pending.

“The bottom line is that tolerance should be a two-way street," Phillips said to applause from students and supporters. "If we care about a free Colorado and a free America, then we should all be for the constitutional principle that no one should be forced to speak or promote a message with which they disagree.”

Among those speaking at the rally was Barronelle Stutzman, owner of Arlene's Flowers in Richland, Wash., whose refusal to serve a customer's gay wedding brought lawsuits against her shop and herself from the state and the American Civil Liberties Union. Her case is pending at the Supreme Court until Phillips' is decided.

“We face losing everything we own — our retirement, our life savings, our business," Stutzman told the crowd. “If the government can come in and tell you what to say, what to think, what to believe, what to create, then we do not live in a free America.”

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The Supreme Court has weighed in twice on the subject of same-sex marriage. In 2013, it ruled that the federal government must recognize gay and lesbian marriages in the 12 states that had legalized them. In 2015, it extended same-sex marriage nationwide.

But even as he authored the court's landmark decision, Justice Anthony Kennedy held out an olive branch to religious conservatives.

"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 wrote. "The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths."

Since then, the justices have tread carefully through a thicket of religious freedom cases. They told the Obama administration and religious nonprofits who objected to offering free coverage for contraceptives to settle their differences. They turned away a pharmacist who sought to avoid filling prescriptions for birth control because of religious objections. But in June, they ruled that religious institutions should be eligible to receive public funds for purely secular purposes such as renovating playgrounds.

The new case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and others like it focus more on religious believers' free speech rights. The challengers say it's not about gays and lesbians but the sanctity of marriage. They point out that they also refuse other requests; Phillips, for instance, won't design cakes for Halloween.

Blaine Adamson, the T-shirt printer who refused to design shirts for a gay pride parade in Kentucky, says he also has nixed shirts promoting strip clubs, portraying Jesus on a bucket of chicken, and proclaiming "Homosexuality is a sin." He was charged with discrimination by the Lexington-Fayette human rights commission before winning twice in local and state courts. The case is now pending before the Kentucky Supreme Court.

“Let’s never forget that our freedoms travel together," Adamson told Phillips' supporters in Colorado last week. "So if Jack’s forced to violate his conscience, it’s only a matter of time before I’m forced to violate mine."

But in Colorado, 20 other states and the District of Columbia, businesses open to the public must serve all customers regardless of sexual orientation, just as lunch counters of the 1960s had to serve African Americans.

"The anti-discrimination act does not tell the bakery how to design its cakes. It does not even require the bakery to make cakes at all," ACLU staff attorney Ria Tabacco Mar said at a moot court event this week. "The law simply says that if the bakery chooses to offer a product to the public at large, it can't refuse to sell that same product to a customer simply because of her race, her religion, her sexual orientation or certain other aspects of her identity."

Casualties among the resistance

The path of resistance to those laws is littered with casualties.

Before Phillips' cakes, Stutzman's flowers and Adamson's T-shirts, Elaine and Jonathan Huguenin's refusal to photograph a lesbian couple's commitment ceremony in New Mexico was rejected by state courts, and the Supreme Court refused to hear their appeal.

Along the way, the couple endured criticism for their stand that was so harsh, they took down their website, changed their phone number and "basically withdrew from public life," their lawyer, Jordan Lorence of Alliance Defending Freedom, says.

“They received so much negative reaction to the stand that they took, including death threats," he says. "They were surprised, and I was surprised, at the ferocity of the opposition."

In Grimes, Iowa, Betty and Dick Odgaard's refusal to host a same-sex wedding at their art gallery inside a former Lutheran church forced them to settle a civil rights complaint and get out of the wedding business. Two years later, the couple shut the gallery for good.

“We continued to be harassed until the day we closed and even after we closed,” Betty Odgaard, an artist, says. "To be portrayed as hateful bigots and much, more worse was devastating."

In Gresham, Ore., Melissa and Aaron Klein's refusal to create a cake for a lesbian couple's wedding led to harassment against them and their vendors, so they closed Sweet Cakes by Melissa. They were ordered by state regulators to pay $135,000 in damages, which they raised through a crowdfunding campaign. Their case is now pending before the state Court of Appeals.

“Our lives were pretty much drastically changed," Melissa Klein says.

Even winning in court hasn't done much to improve Adamson's situation, financially or otherwise. He lost about 25% of his business when the University of Kentucky and other major customers objected to his stance on the gay pride parade.

“Before we even had a chance to respond, the damage was done,” Adamson says. “Once that’s out there, no matter what you say, you’ve kind of been tainted with this brush.”