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Lawmakers Add to the Mix in Same-Sex Wedding Cake Case

Oral arguments before the Supreme Court scheduled Tuesday

Sen. Ted Cruz wrote in a brief filed with the Supreme Court that a case involving a baker who declined to bake a cake for a same-sex wedding “goes beyond a cake.” (Bill Clark/CQ Roll Call file photo)
Sen. Ted Cruz wrote in a brief filed with the Supreme Court that a case involving a baker who declined to bake a cake for a same-sex wedding “goes beyond a cake.” (Bill Clark/CQ Roll Call file photo)

Lawmakers weighed in on the legal issues before the Supreme Court’s oral arguments Tuesday about whether a Colorado baker who calls himself an artist can decline to bake a cake for a same-sex wedding.

As Republican lawmakers led by Sen. Ted Cruz of Texas said in a brief filed with the court, “This case, of course, goes beyond a cake.”

It is the most closely watched item facing the justices this term. The case pits LGBT rights against the free speech and free exercise rights of those with religious objections — the latest front in a social debate that has unfolded in courts across the country in recent years.

Dozens of civil rights, religious, legal and other groups filed briefs to sway the justices. People lined up to save a spot in the courtroom days in advance. Lawmakers plan to speak at rallies in front of the Supreme Court all morning.

While the court filings argue whether a Colorado anti-discrimination law requires Masterpiece Cakeshop owner Jack Phillips to design a custom wedding cake against his religious beliefs, the Republican brief brings some cake-related artistry of its own.

Take this line: “Cake carries within itself a message of bounty and plenty.”

Cruz and the Republicans are suggesting that a custom wedding cake is protected speech under the First Amendment because the design and the cake itself say something and have meaning.

The GOP brief includes references to a “Cake Wrecks” blog that documents bad cakes, a description of the 2012 wedding cake of the duke and duchess of Cambridge, and photographs of Phillips using an artist’s brush to adorn the cake with a flower.

“In fact, society so expects customized messages in wedding cakes, deviating from expectations in the tiniest way is often seen as a message about the parties,” the Republican brief states. “The cake’s message transcends food.”

Beyond the flowery language, the 11 senators and 75 representatives who signed the Republican brief argue that leaving in place lower court rulings — which found Phillips in violation of Colorado’s civil rights laws — “would trample the rights of all Americans, by placing a special burden on those Americans trying to earn a livelihood consistent with their religiously informed beliefs.”

On a Democratic brief that includes Senate Minority Leader Charles E. Schumer of New York and House Minority Leader Nancy Pelosi of California, 36 senators and 175 representatives argue that the case will decide whether commercial enterprises that do business with the public “have a constitutional right to discriminate.”

They argue the decision could have serious implications for laws with public accommodation provisions, such as the Civil Rights Act and the Americans with Disabilities Act. The Colorado law works in tandem with those federal laws.

“These laws ensure that membership in a historically marginalized community is not synonymous with exclusion and protect members of these communities from the indignity and humiliation that comes from being denied service on a discriminatory basis,” the Democrats argue in the brief. “These laws make it possible for everyone to participate in public life.”

The use of “indignity” is likely a key word to try to influence Justice Anthony M. Kennedy, who is expected to play a decisive role in the case and who spoke to dignity in some of the landmark opinions he has authored on cases dealing with civil rights.

Legal experts say the Supreme Court will be forced to draw a line between protecting the dignity of same-sex couples and protecting an artist and his free speech and religious rights.

The case pits two of Kennedy’s hallmark issues against each other. He authored the court’s recent gay rights rulings, including the legalization of same-sex marriage, but has also been a strong defender of free speech rights even within that 2015 opinion.

All eyes and ears will be on him Tuesday.

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