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 Mullin’s request for a custom cake to celebrate their wedding in 2012.
“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 speak about that. He has to teach about that to his family,” Kennedy said.
However, Kennedy also expressed concern for the plight of gay couples who might be refused services, saying signs indicating they were unwelcome could violated their “dignity.” And he asked a Trump administration lawyer if the government “would feel vindicated” if a widespread movement developed to deny cakes to same-sex couples.
The rest of 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 engaging in speech, nor is the chef,” she said.
“The baker is engaged in speech, but the chef is not engaging in speech?” Justice Elena Kagan replied.
Justice Sonia Sotomayor noted that a major sandwich chain suggests its employees are deeply creative. “There are sandwich artists now,” she observed.
Phillips says his policies for his bakery arise from sincerely held religious beliefs that also lead him to decline to make Halloween cakes, as well as cakes with anti-American or sex-related themes or cakes containing alcohol.
Activists and lawyers backing the couple say the courts resolved the core issue in the case about half a century ago, turning down claims by white business owners in the South that their religious beliefs entitled them to refuse to serve African-American customers.
While Phillips’ case has become a cause celebre for conservative Christian activists nationwide, his lawyers and others taking his side in the dispute, including the Trump administration, have largely focused their arguments on free speech rights. The core claim in the case is that Phillips is essentially being compelled to create expression he does not wish to produce, violating his First Amendment right to free speech.
The intrusion on his religious freedom has taken a back seat in the legal arguments, perhaps as a strategy aimed at winning over Kennedy, who is seen as the likely swing justice in the case.
Those backing the couple say that the free-speech claim is a warmed-over version of an issue raised back in 1964 by Maurice Bessinger, the owner of a Columbia, South Carolina, barbecue stand called Piggie Park. He defied federal civil rights laws by claiming he had a First Amendment right to his anti-integration beliefs. Courts rejected his contention, with the Supreme Court calling his claims “patently frivolous” in a brief 1968 ruling.
The wedding cake case is the court’s first significant foray into the issue of gay rights since the landmark 2015 ruling that the Constitution requires states to recognize same-sex marriage.
The dissenters in that case warned that the decision guaranteeing gay-marriage rights would trigger a wave of litigation from religious individuals and organizations resisting efforts to force them to provide services to same-sex couples.