One case on the docket for the Supreme Court this fall, Masterpiece Cakeshop v. Colorado Civil Rights Commission, is the most recent instance where the debate over discrimination has clashed with the religious freedoms that are protected by the First Amendment.

The particulars of the case are as follows. Jack Phillips owns a bakeshop in Lakewood, Colorado. He views his cakes as masterpieces that transcend their original medium, taking on a deeper meaning. For him, it’s an art form, a way of expressing himself. It was this, along with his deep religious convictions, that led him to deny service to David Mullins and Charlie Craig, a gay couple in search of a baker for their wedding cake. Citing discrimination, Craig and Mullins filed a civil rights lawsuit arguing that they were being denied service because of who they were.

That was five years ago. Since then, gay marriage has been declared a constitutional right, applying to all 50 states. So far, the Colorado State of Appeals has ruled against Phillips, deciding that his First Amendment protections were not being violated by the couple’s request. Given the current ideological breakdown of the Supreme Court, with Justice Anthony M. Kennedy likely to be the deciding swing vote, it remains to be seen how the still newly-established court, with the fresh face of Neil Gorsuch, will rule.

What is crucial is how First Amendment protections are applied and understood. According to an article in The Times, “The court added that people seeing the cake would not understand Mr. Phillips to be making a statement and that he remained free to say what he liked about same-sex marriage in other settings.” This is important. There is a fundamental difference between the physical act of speech, something Phillips isn’t being denied, and this “symbolic speech” that is at play here, based on Phillips’ interpretation of baking a cake and the implications it has on the principles of his business.

As previously mentioned, this case will ultimately come down to the swing vote of Justice Kennedy. Recently, Kennedy has leaned toward the side of same sex marriage,  writing the court’s majority 5-4 opinion in Obergefell v. Hodges, the case where it was declared a right. He wrote that there will be “an open and searching debate” between supporters and opponents of gay-marriage.

The conversation in the media regarding this issue has allowed for Phillips to make a case that exudes a religious objection (as opposed to a racial one for example) in order to maintain his own personal convictions which he believes are worthy of First Amendment protections. But this case isn’t any different from denying an orthodox Jewish couple a cake on the religious belief that the Jews killed Jesus or a bi-racial couple on a religious belief against interracial marriage.

However, if one believes that the government should keep their hands out of the private affairs of business, then discrimination doesn’t matter. But that does not mean it is legal, constitutionally permissible or acceptable.

The group that is defending Phillips is the Alliance Defending Freedom, a conservative group with a strong Christian background. The group filed a brief to the Supreme Court where it outlined the courts rich history in siding with proponents of the First Amendment, citing the 1977 precedent Wooley v. Maynard which said that the state of New Hampshire could not force its citizens to display its “Live Free or Die” motto on its license plates. The Alliance Defending Freedom also wrote, that a cake is “the iconic centerpiece of the marriage celebration.” Exactly, and that’s why Mullins and Craig are entitled to theirs too.

Isaac Simon is a Collegian columnist and can be reached at [email protected].