Supreme Court Will Consider Religious and Free Speech Exemptions to Anti-Discrimination Law in Colorado Wedding Cake Case; Asked to Take Up Florist Case As Well

On June 26, the United States Supreme Court granted a petition filed by Alliance Defending Freedom (ADF), the anti-gay “religious” law firm, on behalf of Jack Phillips and his business, Masterpiece Cakeshop, to determine whether the Colorado Court of Appeals correctly denied Phillips’ claim that he is privileged under the 1st Amendment to refuse an order to bake a wedding cake for a same-sex couple.  Masterpiece Cakeshop v. Colorado Civil Rights Commission, 370 P.3d 272 (Colo. App. 2015), cert. granted, 2017 WL 2722428 (June 26, 2017). Following up quickly on this sign that the issue had caught the Court’s attention, ADF filed a Petition for Certiorari on July 14, seeking review of the Washington Supreme Court’s unanimous rejection of a 1st Amendment appeal by a florist who declined to provide flowers for a same-sex wedding. State of Washington v. Arlene’s Flowers, Inc., 389 P.3d 543 (Wash. Feb. 16, 2017), petition for certiorari filed, Arlene’s Flowers, Inc. v. State of Washington (July 14). (In April, Justice Anthony Kennedy, responsible for motions from cases within the geographical boundary of the 9th Circuit, had granted a motion by ADF for an extension of time to file a petition. The filing took place shortly before the extension would expire.)

The Masterpiece Cakeshop petition was filed last July 22, and had been listed for discussion during the Court’s conferences more than a dozen times. The addition of Donald Trump’s nominee, Neil Gorsuch, to fill a vacancy on the Court was likely the catalyst for a decision to grant review, although the ultimate disposition of the case could heavily depend on the views of Justice Kennedy, the “swing justice” on the Court in cases involving LGBT issues. However, in an interesting twist, one of the main precedents that stands in the way of a victory for Phillips and Masterpiece Cakeshop is an opinion written in 1990 by Justice Antonin Scalia, whose death led to Gorsuch’s appointment.

For the full story, access the Summer 2017 issue of LGBT Law Notes.