Justices skeptical of wedding cake as speech
Supreme Court hears case of baker vs. gay rights
WASHINGTON — The U.S. 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 21 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 Kennedy, who likely holds the deciding vote, pressed a Trump administration lawyer who defended the baker’s right to turn away a same-sex couple. Kennedy asked if the court were to grant such a right, would a store owner with religious objections be able to post a sign in the window stating gay couples are not served.
“You would not think that an affront to the gay community?” he asked Solicitor General 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 asked, 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 First 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 “samesex marriage should not be condoned.”
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.”