Court wrestles over wedding cake case
On a sharply divided Supreme Court, the justice in the middle seemed conflicted Tuesday in the court’s high-stakes consideration of a baker who refused to make a wedding cake for a same-sex couple in 2012.
The court’s fault lines were laid bare in a riveting argument that focused equally on baker Jack Phillips’ right to refuse to put his artistic talents to use in support of something in which he disagrees and the Colorado couple’s right to be treated like any other two people who wanted a cake to celebrate their marriage.
Both views were reflected in the questions and comments of Justice Anthony Kennedy, the author of all the court’s major gay-rights decisions and a fierce defender of free speech. The outcome of the case seemed to rest with the 81-year-old justice, who often finds himself with the decisive vote in cases that otherwise divide the court’s conservatives and liberals.
Phillips and the couple, Charlie Craig and David Mullins, were in the courtroom for arguments in the closely watched case that could affect other situations where there’s a clash between social conservatives’ claim of religious freedom and the LGBT community’s fight to preserve hard-won rights.
President Donald Trump’s administration is supporting Phillips in his argument that he can’t be forced to create a cake that violates his religious beliefs. It appears to be the first time the federal government has asked the justices to carve out an exception from an antidiscrimination law.
On the one hand, Kennedy pointed to photographers, florists, graphic designers and even jewelers who might likewise be able to refuse working on a same-sex wedding if the court rules for Phillips.
“It means that there’s basically an ability to boycott gay marriages,” said the author of the 2015 opinion extending same-sex marriage nationwide.
If you win, Kennedy asked Solicitor General Noel Francisco, could the baker put a sign in his window: “We do not bake cakes for gay weddings?”
When Francisco said that would be permissible, Kennedy said, “And you would not think that an affront to the gay community?”
Francisco replied that there “are dignity interests on the other side here, too.”