Court divided on gay-wedding cake case

U.S. Supreme Court Justice Anthony M. Kennedy will likely cast deciding vote

WASHINGTON— The U.S. Supreme Court seemed closely divided Tuesday over whether the First Amendment protects a Colorado baker from creating a wedding cake for a samesex couple, with Justice Anthony M. Kennedy likely to cast the deciding vote.

Kennedy, who wrote the court’s 5-4 decision in 2015 saying gay couples have a constitutional right to marry, speculated about what might happen if a decision in baker Jack C. Phillips’s favour prompted requests for bakers across the country to refuse to make cakes for same-sex couples. Would the federal government feel vindicated? Kennedy asked.

On the flip side, just moments later, Kennedy sharply questioned Colorado Solicitor General Frederick R. Yarger. The justice seemed offended by a comment made during the deliberations of the Colorado Civil Rights Commission when one commissioner said: “And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.”

At one point, Kennedy and some conservative justices raised the possibility that the proceedings against baker Jack C. Phillips had been infected by bias.

Liberal justices worried that an exception for Phillips would gut public accommodations laws that require businesses to serve the public without discriminating because of race, gender, religion and, in the case of Colorado and more than 20 other states, sexual orientation.

The court’s conservatives seemed sympathetic to Phillips’s argument that, as a “cake artist,” the law violates his freedom of expression to refuse to create a custom cake for a same-sex wedding.

Several of the liberal justices questioned what other types of business owners would be exempt if the court made an exception for Phillips.

“Who else is an artist?” asked Justice Ruth Bader Ginsburg.

What about a hair stylist, a chef or a makeup artist, asked Justice Elena Kagan.

Phillips’s lawyer, Kristen K. Waggoner, distinguished between the baker’s highly-stylized, sculpted creations and the services provided by other professions that she said were “not speech.”

“Some people might say that about cakes,” responded Kagan.

The Trump administration filed a brief on behalf of Phillips; supporters of the couple said it was the first time the government has argued for an exemption to an anti-discrimination law. But the government agreed with Phillips that his cakes are a form of expression and that he cannot be compelled to use his talents for something that he does not support.