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Supreme Court Punts on Key Religious Freedom-Gay Wedding Question in Masterpiece Cakeshop

On Monday, the U.S. Supreme Court handed down its decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a landmark case dealing with the question of whether a Christian baker could refuse to bake a cake to celebrate a same-sex wedding. While the court ruled in favor of baker Jack Phillips, it did not explicitly address a fundamental issue in the case: whether opting out of providing expressive goods for a same-sex wedding constitutes unlawful discrimination or an exercise of free speech.

Jeremy Tedesco, senior counsel at Alliance Defending Freedom (ADF), told PJ Media that the case was a "great victory" for Jack Phillips, but acknowledged that "the court was very careful to essentially reserve similar cases for another day."

"Our cases are about creative and artistic expression and about whether government can control what artists can create," Tedesco explained. He argued that bakers like Jack Phillips — along with florists like Baronnelle Stutzman and others — can refuse to serve same-sex weddings because baking cakes, arranging flowers, and taking pictures to celebrate these events constitute an endorsement of same-sex marriage. While same-sex couples have the right to marry, Americans also have the right to disagree with same-sex marriage and to refuse to associate with such events.

"I think Justice Kennedy and people on the opposition are worried about things that are not going to happen, like a mechanic refusing to serve a gay or lesbian," Tedesco argued. He claimed that such fears have no connection to the issues at stake in these cases, and that the free speech questions in Masterpiece Cakeshop should follow historic precedent.

"You don't lose your First Amendment free speech rights just because you're paid to speak," the ADF lawyer said.

Some activists have compared Christians opting out of serving same-sex weddings to the segregation tactics of refusing to serve black people familiar from the struggles for civil rights. Tedesco also attacked this comparison.

"The Civil Rights-era decisions focused on discrimination on the color of your skin. Jack serves every single person who comes into his shop, he just can't create cakes that express all messages for all events," Tedesco said. "For Jack, it's all about the what, it has nothing to do with who's requesting. That is not what was happening in the Jim Crow South."

Even so, Justice Anthony Kennedy, who wrote the majority opinion in Masterpiece Cakeshop, did not take a stand on the issue of whether or not private small business owners can opt out of providing expressive products or services designed for a same-sex wedding.

Instead, Kennedy ruled that the Colorado Civil Rights Commission did not give Phillips a fair hearing. Not only did the commission use a double standard in addressing other cases, but members of that commission denigrated Phillips' faith, going so far as to compare it to religious defenses for slavery and the Holocaust.