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Supreme Court Justices Pose Tough Questions for Both Sides in Cake Case

Supreme Court

Queries included whether discrimination against a gay couple was equivalent to racial discrimination and whether the state of Colorado showed hostility to religion.


Supreme Court justices posed pointed questions for both sides in the Masterpiece Cakeshop case today.

Several of them came from Anthony Kennedy, the key swing vote on the court, in Masterpiece Cakeshop, Ltd., v. Colorado Civil Rights Commission. The case involves Masterpiece owner Jack Phillips's refusal to bake a wedding cake for gay couple David Mullins and Charlie Craig for their 2012 celebration in Colorado, following a wedding in Massachusetts. Phillips cited his Christian beliefs against same-sex marriage, and said creating the cake would violate his rights to freedom of religion and artistic expression. He had been willing to sell the couple other goods, but not a custom wedding cake. The civil rights commission had found the baker in violation of the state's antidiscrimination law, and Colorado courts had upheld its ruling, leading to today's hearing at the U.S. Supreme Court.

Kennedy, the author of the high court's 2015 marriage equality decision, wondered aloud that if bakers put signs in their windows saying they wouldn't create cakes for same-sex couples, that would be "an affront to the gay community," Reuters reports. But he also said he saw hostility to religion in the commission's ruling. "It seems to me the state has been neither tolerant or respectful" of Phillips's views, he said, according to The Wall Street Journal.

Kennedy later asked U.S. Solicitor General Noel Francisco, arguing for Phillips on behalf of the federal government, if the government would feel vindicated if bakers all over the country received requests not to serve same-sex couples' weddings. Francisco said that would be a different situation and there might be a more compelling interest to apply antidiscrimination laws in such cases.

Justice Ruth Bader Ginsburg asked Francisco if the justification for Phillips turning away the couple would apply to discrimination based on race. Francisco replied that race is different. The other lawyer arguing for Phillips, Kristen Waggoner of the right-wing legal group Alliance Defending Freedom, answered similarly when Justice Elena Kagan asked if a baker could legally refuse service to an interracial or interfaith couple. The state has a "compelling interest" in protecting people from discrimination based on who they are, Waggoner said, and Phillips did not object to who his customers are but instead to what they are doing.

Francisco brought up race in the arguments for the baker, who considers himself a "cake artist" and said his custom creations represent artistic expression. Francisco "repeatedly used as an analogy an African American artist, who he said should not be compelled to sculpt a cross that would be used for a Ku Klux Klan service," The Washington Post reports.

Some justices wondered if exempting people like Phillips from antidiscrimination laws would create a huge hole in the application of such laws. Francisco said a ruling in the baker's favor would apply to "a small group of individuals" in "narrow circumstances," Francisco said. Justice Stephen Breyer, however, brought up the possibility of "chaos" in application of nondiscrimination laws. The wrong ruling could "undermine every civil rights law since year 2," he said, according to SCOTUSBlog.

Breyer asked Fred Yarger, representing Colorado's side as the state's solicitor general, if there was a way to find compromise in the case. "I can't think of a way to do that, but maybe you can," Breyer said. Yarger responded that state lawmakers had already considered that question and exempted houses of worship from the law.

American Civil Liberties Union legal director David Cole, also arguing for the state, responded to a statement from Chief Justice John Roberts, who pointed out that the 2015 marriage equality decision expressed respect for those with differing religious views about marriage. Cole said the decision didn't say that businesses could turn away gay customers. And Justice Sonia Sotomayor spoke at length on historic discrimination against LGBT people.

Neil Gorsuch, Donald Trump's first appointee to the court, said the remedy imposed by the state of Colorado raised concerns for him -- that Phillips had to give his staff training in avoiding anti-LGBT discrimination. This means Phillips had to tell the staff, which includes members of his family, that his own religious beliefs are discriminatory, Gorsuch said.

But the conservative Gorsuch also noted some of the same concerns as liberal justices like Breyer, saying exemptions to antidiscrimination laws should not be overly broad.

There was some levity in the courtroom as justices discussed the merits of different types of food and wondered if other wedding-related services, such as hair styling, could be considered artistic expression. "Why is there no speech in creating a wonderful hairdo?" Kagan asked.

After the hearing, Cole released a statement saying, "It is hard to overstate the implications of this case. Jack Phillips has claimed he has a First Amendment right to discriminate against same-sex couples. He does not. Businesses open to the public may not choose their customers. These laws ensure that everyone, including gay people, have the freedom to walk into a business and know that they will be treated the same way. A decision against Charlie and Dave would allow businesses across the country to argue that they too can refuse service based on who the customer is. As we argued in court today, the justices have an obligation to defend the principle of equal dignity under the law for all Americans -- including Dave and Charlie." Mullins told reporters outside the court that being turned away by Phillips made the couple feel like "second-class citizens in our society," according to Reuters.

Phillips, meanwhile, made his argument to reporters , saying, "It's hard to believe that the government is forcing me choose between providing for my family and my employees, and violating my relationship with God."

House Minority Leader Nancy Pelosi issued a statement in support of Mullins and Craig. "The oral arguments heard today will make clear that no business or organization open to the public can hide their discriminatory practices behind the guise of religious liberty," she said. "The Masterpiece Cakeshop case is about the most fundamental right of all Americans to be free from persecution and discrimination. As a nation built on the ideals of freedom and justice for all, we must always seek to remain faithful to those indispensable values. The Supreme Court must once again affirm that no law sanctions discrimination and that every American has the right to be treated fairly and equally."

A ruling in the case is expected by the summer, and Kennedy will likely be the deciding vote, SCOTUSBlog reports.

This story is developing. Check back for updates.

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