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Masterpiece Cakeshop Ruling Bad but Could Have Been Worse, Attorney Says

Masterpiece Cakeshop Ruling Bad but Could Have Been Worse, Attorney Says
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After the U.S. Supreme Court sided with Masterpiece Cakeshop owner Jack Phillips, who had argued that his refusal to make a wedding cake for a gay couple, Charlie Craig and David Mullins, back in 2012 was based on sincerely held religious beliefs, a wide variety of advocacy groups and political figures shared their opinions on the ruling, pro and con. (A sampling of their views is below.)

Among the most interesting takes is that of a direct participant: attorney Paula Greisen, who represented Craig and Mullins in concert with the ACLU of Colorado.

Greisen, who's also an advocate for Lindsay Saunders-Velez, a nineteen-year-old transgender inmate who has been sexually assaulted twice in a span of months, is no fan of the 7-2 decision in Phillips's favor, and says she fears negative repercussions. But she also sees positives in some of the language used by Justice Anthony Kennedy, author of the majority opinion (accessible below), as well as the lack of sweeping pronouncements that might have turned back the clock on LGBTQ rights.

"It's certainly disappointing from the perspective that Charlie and David did not prevail," Greisen acknowledges. "But it's a narrow, limited opinion just on the facts of the case. It was largely based on statements made by some members of the Colorado Civil Rights Commission," which threw its support behind Craig and Mullins in 2014, "and not on any inappropriate conduct by Charlie and David."


Indeed, Kennedy argued that the Colorado Civil Rights Commission had fallen short when it came to "the State’s obligation of religious neutrality" in considering Phillips's actions. The majority opinion cites this comment from an unnamed member of that commission: "I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be — I mean, we — we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.”

The U.S. Supreme Court ruled in favor of Masterpiece Cakeship by a 7-2 margin. - FILE PHOTO
The U.S. Supreme Court ruled in favor of Masterpiece Cakeship by a 7-2 margin.
File photo
At the same time, Greisen notes that "the opinion did make several encouraging statements. The court clearly reiterated that the LGBTQ community cannot be treated as social outcasts or second-class citizens in any way and recognized that a state could certainly protect that community's right to receive the same services and goods as anyone else — and those are very important statements. I think that while the question of whether or not any type of creative service could be denied to protected people based on religious freedom is still open, the case is a win in the sense that it recognizes that the community has to be treated on the same level as other citizens."

The justices on the majority side seemed to go out of their way to tailor their decision for Phillips specifically, as opposed to establishing that making wedding cakes qualifies as a form of speech, as Alliance Defending Freedom, Phillips's legal team, maintained. Given that, Greisen notes, "I think the overall precedential effect is very limited."

In some ways, "it's unfortunate that the court did not take this opportunity to set precedent and answer the questions about what happens when religious expression conflicts with protection provided to certain groups of people," she continues. "But I think the court found itself in a very tricky situation and decided not to answer the constitutional question at issue — which is often what the court decides to do."

Adds Greisen: "When the court can sidestep a constitutional issue and decide a case on facts, it often chooses to do that. But the difficulty is that we're living in a very changing, volatile political climate. These issues are extremely divisive, and although I'm disappointed the court didn't meet the issues straight on, I don't think what happened is incredibly unusual."

Nonetheless, she stresses, "I think the statements by the commissioners did not in any way affect the outcome in the Colorado courts — so I'm disappointed that the court used these rather random statements to invalidate the findings of discrimination in this case."

Attorney Paula Greisen joined the ACLU of Colorado in its defense of Charlie Craig and David Mullins. - FILE PHOTO
Attorney Paula Greisen joined the ACLU of Colorado in its defense of Charlie Craig and David Mullins.
File photo
In their post-decision comments, representatives from Alliance Defending Freedom, a conservative Christian organization, suggested that the finding is broader than Greisen believes it is. Take this statement from ADF senior counsel Kristen Waggoner: "Creative professionals who serve all people should be free to create art consistent with their convictions without the threat of government punishment. Government hostility toward people of faith has no place in our society, yet the state of Colorado was openly antagonistic toward Jack’s religious beliefs about marriage. The court was right to condemn that. Tolerance and respect for good-faith differences of opinion are essential in a society like ours. This decision makes clear that the government must respect Jack’s beliefs about marriage."

Such remarks hint that the decision will embolden groups like ADF to try to expand the parameters of the decision through future complaints. But Greisen says she strongly disagrees "that the opinion gives carte blanche to any business to discriminate against the LGBTQ community or based on race or gender or other people's religions. The court said we need as a society to be more tolerant and understanding, and I would suggest that this level of tolerance and understanding needs to go both ways. I think that's the message the court sent. They sensed hostility in this case, right or wrong, and they didn't want to hand down an opinion that had any taint of what they perceived as hostility. I don't think the court in any way allowed gay people to be discriminated against. I think it simply reaffirmed the right of religion not to be discriminated against."

Regarding the bigger picture, Greisen offers a warning, and a reminder.

"I think there has been a feeling in our country that equality has been achieved — that we have evolved to that point because we had a minority president and because we had a female candidate for president," she says. "But I think this is a lesson that we still have a long way to go, and that progress often is not made in one giant step. It has to be fought for, and we have to continue the fight for these rights. Charlie and David have always known this is just the beginning. So I hope the opinion encourages members of the LGBTQ community, as well as all of us who believe in equal protection, to have strong and persistent voices to fight against inequity. Because the fight isn't over, and these things don't come easily."

Click to read the U.S. Supreme Court's Masterpiece Cakeshop v. Colorado Civil Rights Commission ruling. Continue reading for a variety of statements from prominent individuals and groups about the decision.
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Michael Roberts has written for Westword since October 1990, serving stints as music editor and media columnist. He currently covers everything from breaking news and politics to sports and stories that defy categorization.
Contact: Michael Roberts