As a divided Supreme Court on Tuesday forcefully questioned where to draw a line between religious liberty and anti-discrimination laws in the case of a Colorado baker who declined to make a cake for a same-sex wedding, the justice likely to be the deciding vote appeared torn over how to rule.
Justice Anthony M. Kennedy expressed reservations about a decision that would allow Masterpiece Cakeshop owner Jack Phillips to refuse to create wedding cakes for gay and lesbian couples because of his religious beliefs.
Yet Kennedy also expressed concerns that the Colorado Civil Rights Commission, which had found Phillips violated the state’s anti-discrimination law, had been hostile to religion.
Kennedy was most vocal during an argument from Solicitor General Noel Francisco, who told the justices that Phillips’ cakes are speech and the government can’t compel an artist to use his creation — whether it’s a cake or spoken words — at an event that conflicts with his religious convictions.
Kennedy said such a ruling would basically give businesses a reason to openly refuse service to certain groups. He asked whether that would mean a business could put a sign out front that said, “We do not bake cakes for gay weddings.”
“Would you not think that an affront to the gay community?” Kennedy asked.
Kennedy also wondered what would happen if a Supreme Court ruling in favor of Phillips led to political pressure for bakers all over the country not to make cakes for same-sex weddings.
“Would the government feel vindicated in its position it now submits to us?” Kennedy asked Francisco.
Under President Donald Trump, for what civil rights groups say is the first time ever, the Justice Department sided with a party seeking exemption from non-discrimination law.
But Kennedy later quoted from comments of a commission member who said Phillips’ refusal to make the cake for the same-sex wedding was “despicable.” The justice asked Frederick Yarger, the Colorado solicitor general, what would happen if the Supreme Court thought “at least one commissioner decided the case on grounds of hostility to religion.”
Tolerance is essential in a free society and “it seems to be the state has been neither tolerant or respectful of Mr. Phillips,” Kennedy said.
The comments came during 90 minutes of spirited oral arguments — almost 30 minutes longer than scheduled — in which the other justices appeared to fall along expected ideological lines.
The case is the most closely watched facing justices this term, and the legal issues pitting the rights of same-sex couples against free speech and freedom of religion are just the latest thread in a social debate that has been waged in courts in recent years.
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The court’s liberals generally voiced concerns about how an exception to the anti-discrimination laws for Phillips and his religious beliefs could be written so that other civil rights laws would not be undermined.
Justices Ruth Bader Ginsburg and Elena Kagan pressed the lawyer for Phillips, Kristen Waggoner, about what other types of businesses could say they are artists for the purposes of not serving LGBT customers. They cited jewelers and hairstylists, along with people whose job titles include the word “artist,” such as makeup artists.
Since those professions also see something artistic in what they do, “why wouldn’t that also count?” Kagan asked.
“Because it’s not speech,” Waggoner replied.
“Some people may say that about cakes, you know?” Kagan said.
Justice Sonia Sotomayor, who spoke at length during the arguments, questioned when the Supreme Court has ever given First Amendment protections to food. “In the end, it’s only purpose is to be eaten,” Sotomayor said.
The court’s conservatives expressed concerns about forcing businesses to do work that cut against their religious beliefs. Chief Justice John G. Roberts Jr. asked whether the Colorado law would require Catholic Legal Services, which provides help to low-income individuals, to help a same-sex couple who came in with legal issues about their wedding.
And Justice Samuel A. Alito Jr. said he was disturbed by the state commission’s decisions that appeared to be a “pattern of discrimination based on viewpoint.” Alito said the Colorado commission found it was fine for other bakers to refuse to sell cakes for events they didn’t approve of, but ruled against Phillips.
Alito also pointed out that same-sex marriage was not allowed in Colorado in July 2012, when David Mullins and Charlie Craig visited Phillips’ shop seeking a cake for their wedding. The couple was able to get a wedding cake from another baker, but filed discrimination charges with the state.
The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, will be decided before the court’s term ends in June.