Supreme Court takes on same-sex wedding cake case

The Supreme Court wrestled Tuesday with whether the First Amendment protects a Colorado baker who refused to make a wedding cake for a gay couple.

The case, which pits freedom of speech and religion against equality, could be pivotal in the fight for civil rights for LGBT Americans, and it's unclear in which direction a majority of the justices are headed.

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Justice Anthony Kennedy, who is often the court's swing vote, seemed sympathetic to both sides. He said Colorado doesn’t seem to be tolerant or respectful of the baker’s religious freedoms but also suggested it’s an affront to the gay community to allow businesses to discriminate against same-sex couples.

“It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips's religious beliefs,” he told Colorado Solicitor General Frederick Yarger.

The reference was to Jack Phillips, the owner of the Masterpiece Cakeshop and a cake artist.

A devout Christian, Phillips says he can’t be forced under Colorado’s anti-discrimination laws to make a cake for the same-sex wedding of Charlie Craig and David Mullins, because it would force him to send a message of support for gay marriage.

Colorado's Civil Rights Commission argues that as a retail bakery open to the public, Masterpiece Cakeshop is subject to the state’s anti-discrimination laws and can't refuse a same-sex couple's order to make a cake.

The polarizing case drew friends of the court briefs from lawmakers on both sides and the Trump administration backing Phillips.

Liberal groups have supported Craig and Mullins, arguing the case is an echo of Civil Rights era fights for African Americans.

“A bakery could refuse to sell a birthday cake to a black family if it objected to celebrating black lives,” argued David Cole, an attorney with the American Civil Liberties Union Foundation, on behalf of Craig and Mullins. He said accepting Phillips’s argument would have “unacceptable consequences.”

“A corporate photography studio could refuse to take pictures of female CEOs if it believed that a women’s place is in the home,” he said.

The Department of Justice argued in its 41-page brief that the U.S. has a substantial interest in preserving the constitutional rights of free expression when enforcing federal laws like the Americans with Disabilities Act and Title II of the Civil Rights Act, which the agency said are similar to Colorado's anti-discrimination law.

It claims there is no clear line between Phillips’s speech and that of his clients when he designs and creates a custom wedding cake.

During arguments Tuesday, which lasted more than an hour, Kennedy asked newly appointed U.S. Solicitor General Noel Francisco if a baker would be able to hang a sign in the store window that says “We don’t make cakes for gay weddings” if the court sides with Phillips.

Francisco, who was arguing before the court for the first time in his new role, said the baker would be able to put up a sign, but it would have to say “We don’t make custom cakes for gay weddings.”

“And you would not think that an affront to the gay community?” Kennedy asked.

Francisco acknowledged the dignity interests at stake for the couple but said “there are dignity interests on the other side here, too."

The liberal members of the court struggled with those possible consequences and wondered what other businesses could claim their work is an artistic expression that warrants First Amendment protections. 

Justice Elena Kagan asked why a hairdresser, makeup artist or chef couldn’t qualify.

When Phillips’s attorney, Kristen Waggoner, said makeup doesn’t convey speech, Kagan quipped that some people would say the same about a wedding cake.

“I'm quite serious, actually, about this because a makeup artist, I think, might feel exactly as your client does, that they're doing something that's of great aesthetic importance to the wedding and there's a lot of skill and artistic vision that goes into making somebody look beautiful,” she said.

“And why wouldn't that person or the hairstylist also count?” she asked.

The court's newest member, Justice Neil Gorsuch, asked about the comprehensive training the Colorado Civil Rights Commission ordered Phillips to give staff.

In training his employees, Gorsuch said Phillips would have to tell his employees that his religious beliefs are discriminatory. 

“Why isn't that compelled speech and possibly in violation of his free exercise?” he asked Yarger.

Kennedy chimed in, too, noting that Phillips’s employees are family members.

“Part of that speech is that state law, in this case, supersedes our religious beliefs and he has to teach that to his family,” he said. “He has to speak about that to his family.”

LGBT rights advocates said a ruling in favor of Phillips would be “devastating.”

“The fundamental values at risk in the Masterpiece case cannot be understated: This is about full dignity and respect for all Americans, and the freedom to live our most fulfilling lives without fear of discrimination,” Freedom for All Americans CEO Masen Davis said in a statement. 

“A loss in Masterpiece would be devastating, paving the way for businesses and individuals to pick and choose which laws they want to follow and what types of people they want to serve or turn away,” Davis said.