Supreme Court deeply divided over gay wedding cake case.
Justices weigh civil rights laws vs. religious liberties
WASHINGTON – The Supreme Court appeared divided down the middle Tuesday over a Colorado baker’s refusal to design a wedding cake for a same-sex couple, the latest test in the continuing legal battle between gay rights and religious expression.
In one of the most animated oral arguments the high court has held, justices on both sides peppered four lawyers with questions to illustrate how their decision might affect other merchants, such as chefs and florists, and other minority groups, such as Catholics and African-Americans.
While the court’s liberal justices said the “cake artist” likely cannot refuse to serve gay couples, and conservative justices said his religious and free speech rights should be respected, Justice Anthony Kennedy once again was the man in the middle.
Kennedy suggested that Jack Phillips’ refusal to bake cakes for same-sex weddings might mean he could post a sign that says, “We do not bake cakes for gay weddings.” That, he said, could be seen as “an affront to the gay community.”
But Kennedy also accused Colorado officials of exhibiting a “hostility to religion.”
“Tolerance is essential in a free society,” Kennedy said. “It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
The 5-year-old legal battle between Phillips’ confections and the affections of Charlie Craig and David Mullins tests the Constitution’s guarantees of free speech and religion against state laws prohibiting discrimination.
Phillips, 61, owner of Masterpiece Cakeshop, is fighting for the rights of “creative artists” to choose what they will sell. Craig, 37, and Mullins, 33, are fighting for the rights of LGBT customers to choose what they will buy.
All three sat in the third row of the court’s public section for the roughly 85-minute oral argument inside the packed courtroom. The justices spent a large part of the time worrying about where the lines would be drawn if Phillips is allowed to sidestep same-sex weddings.
“So, the jeweler?” Justice Elena Kagan asked. “Hair stylist? ... The makeup artist?”
Justice Stephen Breyer fretted about a ruling that could “undermine every civil rights law from the year 2.”
But the more conservative justices pushed back with examples of what could happen if the court rules Phillips must serve same-sex weddings.
Chief Justice John Roberts said Catholic Legal Services could be forced to provide free representation to a same-sex couple in a marital dispute. Justice Samuel Alito said a baker could be forced to design a cake celebrating Kristallnacht, the 1938 European wave of violence against Jews.
Thus far, Craig and Mullins have won at the Colorado Civil Rights Commission and the state Court of Appeals. But the Supreme Court, bolstered in April by the addition of stalwart conservative and fellow Coloradan Neil Gorsuch, could be a different story.
Several of the court’s conservatives, including Kennedy, criticized the remarks of a civil rights commissioner who had said using religion to discriminate was “despicable.” That signaled a potential compromise — sending it back to Colorado courts to decide whether Phillips was treated unfairly.