Justices sharply divided on wedding cake case

WASHINGTON — Justice Anthony Kennedy, who almost certainly holds the crucial vote in the case of a Colorado baker who refused to make a wedding cake for a gay couple, sent sharply contradictory messages when it was argued Tuesday at the Supreme Court.

He asked a lawyer for the Trump administration whether the baker, Jack Phillips, could put a sign in his window saying, “We don’t bake cakes for gay weddings.” The lawyer, Noel Francisco, said yes, so long as the cakes were custom made.

Kennedy looked troubled and said the administration’s position was an affront to the dignity of gay couples.

Later, though, Kennedy said that a state civil rights commission that had ruled against the baker had “neither been tolerant nor respectful of Phillips’ religious beliefs.”

The case, which pits claims of religious freedom against the fight for gay rights, has attracted extraordinary public attention.

Phillips says he should not be forced to use his talents to convey a message of support for same-sex marriage. The couple, Charlie Craig and David Mullins, say businesses open to the public should not be allowed to discriminate against gay men and lesbians.

Tuesday’s argument, which lasted almost 90 minutes instead of the usual hour, appeared to divide the justices along the usual lines.

The more liberal justices probed whether all sorts of artisans — tailors, hairstylists, makeup artists, chefs — could refuse to supply goods and services for same-sex weddings. Conservative justices considered whether artists can be required to convey messages with which they disagree.

Phillips argued that two parts of the First Amendment — its protections for free speech and the free exercise of religion — overrode a Colorado antidiscrimination law and allowed him to refuse to create a custom wedding cake.

The American Civil Liberties Union, which represents the couple, has argued that a ruling for Phillips would create a broad mandate for discrimination.