His vote likely to decide the outcome, Supreme Court Justice Anthony Kennedy voiced competing concerns Tuesday about respecting the religious beliefs of a Colorado baker who wouldn’t make a wedding cake for a same-sex couple, and the gay couple’s dignity.
Kennedy, the author of all the court’s major gay-rights cases, worried early in a riveting argument at the high court that a ruling in favor of baker Jack Phillips might allow shop owners to put up signs saying “We do not bake cakes for gay weddings.”
But later, Kennedy said the Colorado Civil Rights Commission seemed “neither tolerant nor respectful of Mr. Phillips’ religious beliefs” when it found his refusal to bake a cake for the gay couple violated the state’s anti-discrimination law.
Phillips and the couple, Charlie Craig and David Mullins, were all in the courtroom Tuesday to listen to an argument that otherwise seemed to put the conservative justices squarely with Phillips and the liberals on the couple’s side.
The case pits Phillips’ First Amendment claims of artistic freedom against the anti-discrimination arguments of the Colorado commission, and the two men Phillips turned away in 2012.
The argument was the first involving gay rights since the Supreme Court ruled in 2015 that states could not prevent same-sex couples from marrying.
The Trump 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 anti-discrimination law.
Protesters on both sides filled the sidewalk in front of the court, shortly before the start of the argument.
“We got Jack’s back,” Phillips’ supporters said. Backers of Craig and Mullins countered: “Love wins.”
The case’s outcome also could affect photographers and florists who have voiced objections similar to those of Phillips.
“Artists shouldn’t be forced to express what the government dictates. The commission ordered Jack to celebrate what his faith prohibits or to stop doing the work he loves. The Supreme Court has never compelled artistic expression, and doing so here would lead to less civility, diversity, and freedom for everyone, no matter their views on marriage,” Kristen Waggoner, the Alliance Defending Freedom who is representing Phillips, said in an email.
But the American Civil Liberties Union and other rights groups that have sided with the gay couple said they fear a ruling for Phillips could allow for discrimination by a range of business owners. They said the court has never recognized what they call a constitutional right to discriminate.
“The question is whether a shop like Masterpiece Cakeshop can put up a sign in its window saying, ‘Wedding cakes for heterosexual couples only,’“ ACLU deputy legal director Louise Melling said. The ACLU is representing Craig and Mullins.
All eyes were on Kennedy throughout the 75-minute argument. The 81-year-old Kennedy is the author of the 2015 gay marriage decision and all the court’s major gay-rights rulings. At the same time, Kennedy has forcefully defended free-speech rights in his nearly 30 years as a justice.
Colorado native Neil Gorsuch also will be taking part in the most important gay rights case since he joined the Supreme Court in April.
Colorado is among only 21 states with statewide laws barring discrimination against gays and lesbians in public accommodations.
The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, 16-111, will be decided by late June.