Masterpiece Cakeshop owner Jack Phillips says he was exercising his right to freedom of expression when he refused to bake a wedding cake for a gay couple, but the Colorado Civil Rights Commission called it unlawful discrimination.

So the Lakewood baker took his case to the Colorado Court of Appeals, which heard oral argument Tuesday in what has become a pivotal case nationally in the legal tug-of-war over religious freedom and same-sex marriage.

“Mr. Phillips has the same First Amendment right as the cake artist who doesn’t want to create a Confederate flag cake,” said Jeremy Tedesco, the Alliance Defending Freedom attorney who argued Phillips’ case before the court.

Ria Mar, the American Civil Liberties Union attorney representing Charlie Craig and Dave Mullins, countered, “Mr. Phillips is free to advocate and teach his beliefs in his personal life, but when opens a business that is open to the public, he is not free to use those beliefs to discriminate against others.”

“Religious beliefs do not put the cake shop above the law,” she said.

Phillips is one of a half dozen Christian small-business owners embroiled in legal battles after declining to provide services for same-sex ceremonies. So far none of the defendants — including a florist in Washington, a baker in Oregon and a photographer in New Mexico — has prevailed before administrative law judges or courts.

Twenty-one states, including Colorado, and the District of Columbia prohibit discrimination in public accommodations based on sexual orientation.

“If a same-sex couple can get married and then walk into a business and be turned away because they are gay, we have not achieved true equality yet,” said Mullins at a press conference following oral argument.

Attorneys for Phillips argue that he turned down the couple not because they were gay but because they wanted a cake to celebrate an event that goes against his beliefs. The bakery routinely sells cookies, bagels and specialty cakes to gay and straight customers alike, he said.

But requiring the baker to use his artistic talents to create a cake for a gay wedding is no different than compelling him to speak out in favor of same-sex marriage, said Tedesco.

“Americans are guaranteed the freedom to live and work consistent with their faith,” the attorney said. “Government has a duty to protect people’s freedom to follow their beliefs personally and professionally rather than force them to adopt the government’s views.”

Tedesco said that Phillips also refuses to make Halloween cakes, or cakes promoting a racist or hateful message.

“We still have rights as American citizens to pursue our faith and to pursue our free-speech rights,” Phillips said.

The couple filed a complaint with the Colorado Civil Rights Division after Phillips declined in 2012 to bake them a cake for a wedding reception following their marriage ceremony in Massachusetts. At the time, same-sex marriage was not legal in Colorado.

An administrative law judge ruled in the couple’s favor in December 2013, rejecting Phillips’ free-speech argument, saying, “The act of preparing a cake is simply not ‘speech’ warranting First Amendment protection.”

“Conceptually, Respondents’ refusal to serve a same-sex couple due to religious objection to same-sex weddings is no different from refusing to serve a biracial couple because of religious objection to biracial marriage,” said the order.

Phillips appealed the decision to the commission, which in May 2014 ordered him to “cease and desist discriminating” against gay couples seeking wedding cakes and to take measures, including “staff training,” to ensure that it doesn’t happen again.

Since then, Phillips has stopped making wedding cakes altogether, which he says has cost him about 40 percent of his business. So far he has not been fined or ordered to pay damages to Craig and Mullins, although the Court of Appeals could require him to do so.

In a similar case in Oregon, the owners of Sweet Cakes by Melissa were ordered last week by the state labor commissioner to pay $135,000 in “emotional damages” to a lesbian couple.

A ruling in the case is expected later this year. No matter the outcome, an appeal to the Colorado Supreme Court is likely.

— valrichardson17@gmail.com