The Supreme Court has a tough question ahead: Where do you draw the line between free speech and discrimination?



The case headed to the high court in the new term that begins next month centers on Jack Phillips, the owner of the Colorado-based Masterpiece Cakeshop who refused to make a cake for a same-sex wedding.

Phillips claims he shouldn't be forced to under the state’s anti-discrimination law and gained a strong ally this week when the Trump administration filed a friend of the court brief on his behalf.

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Acting Solicitor General Jeffrey Wall and DOJ attorneys claim there is no clear line between Phillips’s speech and that of his clients when he designs and creates a custom wedding cake.



“He is not merely tolerating someone else’s message on his property; he is giving effect to their message by crafting a unique product with his own two hands,” the administration said in its 41-page brief.



“In addition, because Phillips knowingly creates each custom cake for a specific couple and a specific event, observers could reasonably attribute to him a message of neutrality or endorsement."



Because of the artistry associated with custom cakes, Phillips argues that he honors God through his work by declining to use his creative talents to design and create cakes that violate his religious beliefs. These include cakes with offensive messages and cakes to celebrate Halloween.

But the American Civil Liberties Union attorneys representing the couple, David Mullins and Charlie Craig, claim that Phillips’s reasoning for discriminating against their clients could apply to a host of other businesses.



“For example, hair salons, tailors, restaurants, architecture firms, florists, jewelers, theaters and dance schools use artistic skills when serving customers or clients,” the ACLU argued in briefs.



Louise Melling, ACLU's deputy legal director, said Phillips’s argument is nothing more than an argument that the U.S. Constitution protects the right to discriminate.



“What’s at stake is whether a business that opens its doors to the public can turn you away for who you are,” she said.



But religious rights groups say the case is about religious freedom, not discrimination.

In a similar case in Oregon, bakeshop owners Aaron and Melissa Klein were issued a $135,000 state penalty for refusing to make a cake for a same-sex wedding.



Stephanie Taub, counsel for First Liberty which represents the owners, said the Supreme Court’s decision will determine whether the government can force business owners to chose between their livelihoods or their beliefs.

A ruling in the Kleins' case is pending from the Oregon Court of Appeals.



Martin Lederman, an associate professor at Georgetown Law and former deputy assistant attorney general under President Obama, said the justices are likely to unanimously agree that Phillips has an artistic ability that is entitled some First Amendment protection.



But he said convincing the court that the product itself says “celebrate this couple,” and by doing so injures Phillips, will be a harder sell.



Justices are likely to raise concerns that a ruling in Phillips’s favor could lead other businesses to raise similar free speech claims.

But Carrie Severino, chief counsel and policy director at the conservative Judicial Crisis Network, said she doesn’t see that as a real threat.



As Phillips’s attorneys noted, Mullins and Craig “easily obtained a free wedding cake with a rainbow design from another bakery.”



“So the specter of ‘this is going to be this rampant problem where people aren’t going to be able to get cakes, people aren’t going to get flowers,’ I think that’s laughable,” Severino said.



“We know that’s not actually going to be the predominant response and there’s a lot of businesses that see this as an opportunity and say, ‘Great. We’re going to hang out our rainbow flag and cater to this market' and I think there’s not a real risk there," she said.

Severino claims the case is solely about the message the cake sends not the people buying it.



“If the same couple had come in and asked for a birthday cake it would have been a very different question,” she said. “This is really about a specific message.”