The Supreme Court gave a somewhat skeptical hearing Tuesday to a Colorado baker’s claim that he had a free-speech right to refuse to make a wedding cake for a same-sex couple, despite a state civil rights law that bans such discrimination.
Several justices questioned why a baker’s work could be considered speech and how the court could set a legal rule that would allow some businesses involved in “expressive” work, but not others, to refuse to serve certain customers.
What about a jeweler, a hairstylist or a makeup artist, asked Justice Elena Kagan. “How do you the draw the line?”
Kagan pressed Kristen Waggoner, lawyer for cake maker Jack Phillips, to explain why a baker should have a free-speech right to refuse to bake a wedding cake for a same-sex couple, but not a chef or wedding dress tailor working at the same event.
“Because it’s not speech,” Waggoner said.
“Some people may say that about cakes, you know,” Kagan replied.
The justices were weighing a clash between gay rights and religious liberty and trying to decide when, if ever, a business owner has a right to be exempted from a state’s civil rights law. Colorado, like California and 20 other states, says businesses that are open to the public may not deny equal service to customers because of their race, religion, nationality or sexual orientation.
Justice Anthony M. Kennedy, who probably holds the deciding vote, pressed a Trump administration lawyer who defended the baker’s right to turn away a same-sex couple. If the court were to grant such a right, Kennedy asked, would a store owner with religious objections be able to post a sign in the window stating that gay couples are not served?
“You would not think that an affront to the gay community?” he asked U.S. Solicitor Gen. Noel Francisco.
Ruling for the baker could have a broad impact, he said, and persuade others around the country to join a movement to refuse service to gay couples. “Would the government feel vindicated in its position?” Kennedy said, sounding irked.
Backpedaling, Francisco said the administration was defending the principle of free expression. “The problem is when you force somebody not only to speak, but to contribute that speech to an expressive event to which they are deeply opposed, you force them to use their speech to send a message that they fundamentally disagree with,” he said. And that is “the core of what the 1st Amendment protects.”
During the second half of the argument, it was clear that Kennedy was equally troubled by what he saw as religious bias against Phillips for his conservative Christian beliefs.
Two years ago, Kennedy wrote the court’s opinion for a 5-4 majority that made same-sex marriage a constitutional right. He added a passage saying the law should respect those who “adhere to religious doctrines” that say “same-sex marriage should not be condoned.”
He was upset by a statement from one member of the Colorado Civil Rights Commission that was cited in the legal briefs. “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery or the Holocaust,” said Commissioner Heidi Hess. “To me it is one of the most despicable pieces of rhetoric that people can use, to use their religion to hurt others.”
Kennedy read part of the statement and said it showed a “hostility to religion” on the part of at least one commissioner. He pressed Colorado Solicitor Gen. Frederick Yarger whether the commission had disavowed her statement.
“Do you disavow or disapprove of that statement?” he asked. After a pause, Yarger agreed to disavow the statement, but said it did not reflect the full commission or its decision.
Kennedy was not finished. “Tolerance is essential in a free society,” he told Yarger. “It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
The focus on religious bias made it hard to predict the outcome. Last year, lawyers for the Arizona-based Alliance Defending Freedom asked the Supreme Court to hear the case of Masterpiece Cakeshop vs. Colorado and to rule on whether the state’s insistence that Phillips offer full and equal service to gay couples violated his rights to the freedom of speech and the “free exercise of religion.”
After months of delay, the court announced in late June it would hear the case, but only on the free-speech question.
But during Tuesday’s arguments, Kennedy and his conservative colleagues seemed more troubled by the religious aspect of the dispute.
Last to be heard Tuesday was David Cole, national legal director for the American Civil Liberties Union, who was representing Charlie Craig and David Mullins. They were planning a wedding reception in 2012 when they stopped by the Masterpiece Cakeshop. Phillips said he could not make a custom cake for them because the Bible said marriage was limited to a man and a woman. Surprised and upset, the two men left and later filed a complaint with the state commission.
Cole said the dispute did not involve words or speech. “The only thing the baker knew about these customers was that they were gay,” he said. “There was no request for a design. There was no request for message. He refused to sell any wedding cake. And that’s identity-based discrimination.”