High Court Split Over Cake Case

  • Jack Phillips, center left, the baker who refused to make a cake for a gay couple, waves to supporters as he walks out of the Supreme Court on Tuesday. MUST CREDIT: Washington Post photo by Bill O’Leary

The Washington Post
Tuesday, December 05, 2017

Washington — It quickly became clear at the Supreme Court on Tuesday that Justice Anthony Kennedy holds the key to whether the First Amendment protects a Colorado baker who refused to create a wedding cake for a same-sex couple — and Kennedy’s pivotal role makes the outcome uncertain.

The 81-year-old justice gave both sides cause for hope and concern. That shouldn’t be surprising, because the case represents a conflict between two principles that have been dear to Kennedy during nearly 30 years on the court: recognition of gay rights and protection of religious beliefs.

“If you prevail,” Kennedy asked the Trump administration lawyer siding with Masterpiece Cakeshop owner Jack Phillips, “could the baker put a sign in his window, ‘We do not bake cakes for gay weddings?’ ”

Answered Solicitor General Noel Francisco: “Your Honor, I think that he could say he does not make custom-made wedding cakes for gay weddings, but most cakes — ”

Kennedy interrupted: “And you would not think that an affront to the gay community?”

But on the other hand, Kennedy worried that the Colorado Civil Rights Commission had not been mindful of the conflict Phillips might have faced in deciding whether to create a cake for Charlie Craig and David Mullins, when Phillips’ religion teaches that marriage is only between a man and a woman.

“Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual,” Kennedy told Colorado Solicitor General Frederick Yarger, who was defending his state’s anti-discrimination law.

“It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

There were a great many questions and assertions and a blizzard of hypotheticals in an engrossing oral argument that went overtime on Tuesday. Most seemed in service of convincing Kennedy that he was right when he speculated that lax enforcement of discrimination laws might lead to a vendor “boycott” of same-sex weddings, or alternatively reinforcing his belief that religious convictions must be accommodated by government.

Even Chief Justice John Roberts Jr., whose questions favored the baker, seemed to give it a try.

Roberts attempted to blunt efforts to compare those who disapproved of same-sex marriage with those who opposed racial equality. He cited Kennedy’s words in the court’s 2015 decision in Obergefell v. Hodges, which found a constitutional right for gay couples to marry.

“The court’s decision went out of its way to talk about the decent and honorable people who may have opposing views,” Roberts said. “And to immediately lump them in the same group as people who are opposed to equality in relations with respect to race, I’m not sure that takes full account of that — of that concept in the Obergefell decision.”

As Phillips, Craig and Mullins watched from prime seats in the crowded courtroom, the justices lined up as expected.

Liberal justices worried that an exception for Phillips would gut public accommodations laws that require businesses to serve the public without discriminating because of race, gender, religion and, in the case of Colorado and more than 21 other states, sexual orientation.

“What is the line?” Justice Stephen Breyer asked Phillips’ lawyer, Kristen Waggoner of the conservative Christian legal organization Alliance Defending Freedom. “Now, the reason we’re asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law” protecting “African-Americans, including the Hispanic Americans, including everybody who has been discriminated against in very basic things of life, food, design of furniture, homes, and buildings.”

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan led Waggoner through a procession of people who might perform services for a wedding — singers, photographers, chefs, invitation designers, tailors, jewelers — whose creative work might be considered “speech” for First Amendment purposes.

“The makeup artist?” Kagan asked.

“No,” Waggoner responded.

“It’s called an artist,” Kagan replied. “It’s the makeup artist.”

Sotomayor was unsure whether any cake, no matter how dramatic or decorated, would qualify as the kind of artistic expression the First Amendment would cover.

“When have we ever given protection to a food?” she asked.

Waggoner answered: “Certainly not all cakes would be considered speech, but in the wedding context, Mr. Phillips is ... creating a painting on that canvas that expresses messages, and including words and symbols in those messages.”

Waggoner and Francisco said objecting to providing services based on race would not be allowed; race is unique, they said. But Waggoner acknowledged that objecting to providing wedding services to an interreligious couple might be similar to Phillips’ case.

Later in the hearing, conservative justices sharply questioned Colorado’s lawyer, Yarger, and David Cole of the American Civil Liberties Union, who represented Craig and Mullins.

Roberts asked whether a Catholic legal services organization that offered its advice free to the community could refuse to represent a same-sex couple because of its religious beliefs.

Yarger eventually said they could not. “So Catholic Legal Services would be put to the choice of either not providing any pro bono legal services or providing those services in connection with the same-sex marriage?” Roberts asked.

Justices Samuel Alito Jr. and Neil Gorsuch questioned whether the commission and the court that ruled against Phillips might be biased. The commission did not penalize several bakers who refused a request to make cakes displaying a message critical of same-sex marriage, Alito said.

“It’s OK for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage,” Alito said. “But when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage.”