Colorado baker case at Supreme Court on Tuesday could ripple through multibillion-dollar wedding industry

Tuesday, 05 December 2017, 05:21:12 AM. It all began with a cake but now businesses across the marriage industry are closely watching what will happen when the U.S. Supreme Court convenes Tuesday to hear the case of a religious Colorado …

WASHINGTON — It all began with a cake, but now businesses across the wedding industry are closely watching what happens when the U.S. Supreme Court convenes Tuesday to hear the case of a religious Colorado baker who refused to do work for a gay couple who were getting married.

At issue is whether Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, had the legal right to turn away fiancés Charlie Craig and David Mullins when they asked him to bake a wedding cake in 2012.

Phillips contends his cakes are art and that doing so would violate his Christian values and right to free expression; Craig and Mullins counter that it’s discriminatory to refuse them a service offered to other customers.

Ruling could sway a vast industry

While the case has the potential to affect a wide range of businesses, attorneys on both sides agree the ones most likely to see an impact are the florists, photographers and others who make up a U.S. wedding industry that accounts for tens of billions of dollars a year.

Supporters of Phillips argue that if he loses his legal fight that like-minded entrepreneurs with a religious objection to same-sex marriage effectively would be barred from doing wedding work.

A loss would “provide a road map for litigation against Christian photographers who are bound by religious conviction not to offer their artistic talents to photograph a same-sex wedding ceremony or celebration,” wrote the International Christian Photographers in a brief filed to the high court.

Attorneys aligned ideologically with Craig and Mullins paint a different picture: A ruling in favor of Masterpiece Cakeshop would open the door for widespread discrimination — starting with weddings and spiraling outward.

“It is not hard to imagine the claims that will follow this case: A jeweler may argue that his religion forbids him from selling wedding rings to an interfaith couple; a shop owner may refuse service to women customers to avoid contact prohibited by his religion,” wrote attorneys for the Denver Metro Chamber of Commerce and more than two dozen businesses.

Attitudes have changed since same-sex marriage legalized

The dueling arguments are what one wedding professional described as the “unfinished business” of an industry that’s had to rapidly adjust to shifting American attitudes toward same-sex marriage — support since 2001 has risen from 35 percent to 62 percent, according to the Pew Research Center — culminating with its 2015 legal blessing by the Supreme Court.

“It is amazing how much things have changed in such a short amount of time,” said Kathryn Hamm, who publishes GayWeddings.com as part of the WeddingWire network.

Almost 20 years ago, Hamm’s mother launched a pair of same-sex wedding websites — TwoBrides.com and TwoGrooms.com — after she couldn’t find a photo album that featured two brides in time for Hamm’s own ceremony.

It’s been the family business ever since, and Hamm said over that time wedding-related companies largely have shifted to embrace gay and lesbian couples.

“The vast majority of the industry is on board with working with same-sex couples,” Hamm said.

In this Tuesday, Nov. 28, 2017, ...David Zalubowski, The Associated PressIn this Tuesday, Nov. 28, 2017, photograph, Charlie Craig and David Mullins are shown in their home in Denver. The Colorado couple is at the core of a legal case that goes before the U.S. Supreme Court for oral arguments on Tuesday, Dec. 5 in which Denver-area baker, Jack Phillips, cited his Christian faith in refusing to make a cake for the gay couple’s wedding celebration in 2012.

One reason has to do with the clientele. Most weddings are for young people, and most young people accept same-sex marriage — an attitude that weddings vendors increasingly have adopted too, Hamm said.

But she added that acceptance is not universal and some same-sex couples still experience discrimination — which is why legal protections are necessary.

“I do expect to walk into any public store and say I would like a wedding cake — especially since marriage is legally recognized,” Hamm said.

Baker’s attorneys say his business has suffered

Attorneys for Phillips see it a different way.

In part because of the newfound options for same-sex couples, shop owners such as Phillips should be allowed to do business as they see fit.

The “market already provides existing means to address this (issue), such as private websites apprising consumers of professionals in a geographical area who will celebrate same-sex weddings,” noted Phillips’ side in one brief.

They wrote that revenue at Masterpiece Cakeshop was devastated after the state Civil Rights Commission “declared Phillips’s religious beliefs about marriage to be discriminatory” and that businesses in other expressive fields could face similar consequences.

“By effectively forcing him to stop designing wedding cakes, the commission stripped Phillips of roughly 40 percent of his family income, which caused him to lose most of his employees,” they wrote.

For many professions, wedding work is crucial to their bottom line.

There have been nearly $56 billion in U.S. weddings sales this year — on everything from gowns to cakes to photography, according to a market analysis by researchers at The Wedding Report. About $1 billion of that amount was spent in Colorado.

How much of either total went to same-sex weddings is unclear, though one 2016 survey released by WeddingWire found that opposite-sex couples on average spent about $15,000 on weddings versus $11,000 for their gay and lesbian counterparts.

Industry, social views have changed in stride

Cailey McDermott, owner of Salida-based Phreckles Photography and president of the Heart of the Rockies Wedding Association, said the growing popularity of same-sex weddings has affected the industry in ways big and small.

For example: Her group recently changed the name of a wedding fair it hosts — from the Un-Bridal Show to Mi Amor: A Wedding Fair with Flair — because the old name wasn’t inclusive enough.

“We felt that having the word ‘bridal’ in our title left people out,” she said.

McDermott said she empathized with Phillips’ argument –- to a point. “I understand that expression is very personal,” she said. “But it’s still discrimination.”

One worry among those who agree with Craig and Mullins is that same-sex couples who live outside big cities would be limited in their choices if the Supreme Court gives shopkeepers more latitude to turn people away based on religious beliefs.

“For example, a couple living in a rural or exurban area that wishes to marry may not have a choice of venues that will host their wedding, or a choice of jewelers that will sell them wedding rings, or a choice of bakers that will sell them cakes, and searching the internet for alternatives may be laborious and impractical,” wrote attorneys for the Denver Metro Chamber of Commerce in their brief — one of dozens the Supreme Court has received.

A number of briefs filed in support of the couple also warned that a win for Phillips likely would encourage other businesses — from funeral parlors to apartment complexes — to use religion as a way to deny service to certain patrons.

Justice Kennedy could be crucial to case

When the two sides appear Tuesday for oral arguments at the Supreme Court, much of the focus will be on Justice Anthony Kennedy — a frequent swing vote on the nine-member court. (Less attention is likely for conservative U.S. Justice Neil Gorsuch of Colorado, whose jurisprudence has shown wide latitude for religious rights).

Kennedy wrote the majority opinion in the 2015 case Obergefell v. Hodges that legalized same-sex marriage, but court observers note that Kennedy’s is much more complicated on cases that address religion or freedom of speech.

In the case Burwell v. Hobby Lobby Stores, he agreed with the conservative half of the court when they sided with businesses that had religious objections to a provision of the Affordable Care Act that compelled them to provide employees with health insurance plans that included contraception coverage.

And Kennedy’s longtime support of free speech could come into play, said Alan Chen, a professor at the University of Denver’s Sturm College of Law. “That suggests that he might be open-minded to the baker’s claim that there is some expressive component to baking a wedding cake that distinguishes it from other businesses,” Chen said.

Taken together, he concluded: “This is going to be a very difficult case for Justice Kennedy to figure out where he sits.”

The name of the case is Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

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