Supreme Court appears split in fight over cake for gay wedding

 In Politics

A Supreme Court protest is seen. | Getty Images

People gather outside the Supreme Court before Masterpiece Cakeshop vs. Colorado Civil Rights Commission is heard Tuesday. | Brendan Smialowski/AFP/Getty Images

Colorado bakeshop owner claims anti-discrimination law intrudes on his free expression rights.


A Christian baker who refused to make a wedding cake for a same-sex couple found unexpected traction for his position at the Supreme Court Tuesday, as the justices wrestled with a high-profile clash between religious beliefs and anti-discrimination laws.

The high court’s champion of gay rights, Justice Anthony Kennedy, seemed troubled by Colorado officials’ treatment of Masterpiece Cakeshop owner Jack Phillips after he turned down Charlie Craig and David Mullins’ request for a custom cake to celebrate their wedding in 2012.

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“Tolerance is essential in a free society. Tolerance is most meaningful when it’s mutual,” Kennedy said during oral arguments that were scheduled for an hour but stretched to nearly an hour and a half. “It seems to me the state in its position has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

Kennedy dismissed as “too facile” a lawyer’s arguments that Phillips had discriminated against the gay couple based on their identity. And the Reagan appointee and frequent swing justice suggested Colorado went too far in ordering Phillips to implement remedial training for his workers.

“He has to teach that to his family. He has to speak about that to his family,” Kennedy said.

However, Kennedy also expressed concern for the plight of gay couples who might be refused services, and he asked a Trump administration lawyer if the federal government “would feel vindicated” if a widespread movement developed to deny cakes to same-sex couples.

“If you prevail, could the baker put a sign in his window, we do not bake cakes for gay weddings?” Kennedy asked Solicitor General Noel Francisco. “And you would not think that an affront to the gay community?”

“I would not minimize the dignity interests to Mr. Craig and Mr. Mullins one bit, but there are dignity interests on the other side here too,” replied Francisco, who argued in favor of the baker.

Beyond Kennedy, the court seemed to divide along the usual ideological lines, with liberals speculating about the damage a ruling for the baker could do to laws against racial, gender and religious discrimination, while conservatives expressed worries about intruding on deeply held religious beliefs.

Liberal justices warned that allowing a cake-maker to avoid anti-discrimination laws would lead to photographers, jewelers, tailors and caterers seeking to level the same claims.

Phillips’ attorney, Kristen Waggoner of the Alliance Defense Fund, called Phillips’ work a “temporary sculpture” and said concerns about other vendors trying to avoid serving gay couples were exaggerated.

“The tailor is not engaged in speech, nor is the chef,” she said.

“Woah, the baker is engaged in speech, but the chef is not engaged in speech?” Justice Elena Kagan replied incredulously.

Even someone doing makeup might decline to take part in a wedding on grounds they’re expressing their creativity, Kagan noted.

“It’s called an artist. It’s the makeup artist,” she noted, to laughter from many in the courtroom. “A makeup artist, I think, might feel exactly as your client does, that they’re doing something that’s of great aesthetic importance to the wedding.”

Justice Sonia Sotomayor noted that a major sandwich chain suggests its employees are deeply creative. “There are sandwich artists now,” she observed.

Noting that “the primary purpose of food is to be eaten,” Sotomayor proposed a kind of functional test, where objects to be used or consumed wouldn’t be considered expressive enough to warrant First Amendment protection.

But Justice Samuel Alito noted that buildings are intended to be used and lived in, although “architectural design” surely has a large creative element to it.

Alito seemed to think Waggoner would embrace that idea, but she quickly rejected it, perhaps out of concern that allowing protection for architects could be seen as countenancing housing discrimination.

“Generally that would not be protected because buildings are functionable, not communicative,” Waggoner declared.

Justice Stephen Breyer took that as an opening.

“So, in other words, Mies or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that really does baffle me, I have to say,” Breyer said.

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