Kennedy Sends Mixed Signals in High Court Gay-Wedding Cake Case

(Bloomberg) -- Pivotal Justice Anthony Kennedy sent mixed messages during a spirited and divisive U.S. Supreme Court argument Tuesday over a Colorado baker who refuses to make cakes for same-sex weddings.

In a session that ran more than 20 minutes over its allotted hour, the justices peppered both sides with questions -- and repeatedly interrupted each other -- as they debated whether the baker’s speech and religious rights trump a state anti-discrimination law. It was the first full-scale fight over gay rights since the court legalized same-sex marriage nationwide in 2015.

Kennedy, a champion of both gay rights and free speech, said it would be an "affront to the gay community" if bakers could put up signs saying they don’t bake cakes for same-sex weddings. He also expressed concern that wedding vendors would get "an ability to boycott gay marriages."

But later he said Colorado had been "neither tolerant nor respectful" of the religious views of Denver-area baker Jack Phillips, who was ordered by the state to either make cakes for gay weddings or stop making wedding cakes at all.

By all appearances, the case will divide the justices along ideological lines. The four Democratic appointees all aimed skeptical questions at Phillips’s attorney and the lawyer for the Trump administration, which backs the baker. They questioned whether Phillips could claim a free speech right related to his custom-made cakes.

"When have we ever given protection to a food?" Justice Sonia Sotomayor asked.

‘Creating a Painting’

The baker’s lawyer, Kristen Waggoner, likened Phillips to an artist "creating a painting" on a canvas.

Sotomayor and other justices questioned whether Phillips’s argument had any logical limit, short of undercutting longstanding anti-discrimination laws. Waggoner was asked whether chefs, jewelers, hair stylists and makeup artists were similarly entitled to free speech exemptions from anti-discrimination laws.

Her answers didn’t always satisfy the questioners. "The baker is engaged in speech, but the chef is not engaged in speech?" an incredulous Justice Elena Kagan asked at one point.

The court’s conservative wing directed most of its fire at Colorado’s lawyer and the attorney representing David Mullins and Charlie Craig, the couple Phillips turned away when the two visited his Masterpiece Cakeshop in 2012 to discuss a wedding cake.

Justice Samuel Alito questioned how Phillips could be accused of discrimination when gay marriage wasn’t yet legal in Colorado. The couple was planning to marry in Massachusetts and hold a reception in Colorado.

"If Craig and Mullins had gone to a state office and said, ‘We want a marriage license,’ they would not have been accommodated," Alito said.

22 States

Chief Justice John Roberts wondered what would happen to a religious group such as Catholic Legal Services if it refused to help a gay couple with a contract dispute connected to their wedding.

"Are they in violation of the Colorado law?" he asked.

The case will have its most direct impact on the approximately 22 states that bar discrimination based on sexual orientation by establishments that do business with the public. Lower courts in some of those states have ruled that florists, photographers and building owners must provide the same services for gay weddings as for opposite-sex ceremonies.

Craig and Mullins’s lawyer, David Cole of the American Civil Liberties Union, said Phillips’s position would "lead to unacceptable consequences," letting bakeries refuse to sell birthday cakes to black families and photographers refuse to take pictures of female corporate executives.

U.S. Solicitor General Noel Francisco, making his first argument as President Donald Trump’s top courtroom advocate, said vendors shouldn’t be allowed to discriminate on the basis of race. But he said the First Amendment lets private parties take other factors into account, including gender and religion.

‘Everything But Race’

"I think pretty much everything but race would fall in the same category," Francisco said.

Kennedy gave both sides plenty to ponder. He seemed to reject Cole’s contention that Phillips was discriminating on the basis of Craig and Mullins’s identity as gay people.

"It’s not their identity. It’s what they’re doing," Kennedy said.

Kennedy also pointed to comments by a member of the Colorado Civil Rights Commission that the justice suggested showed "hostility to religion."

And Kennedy said the state could accommodate Phillips’s religious views. "We assume there were other shops that -- other good bakery shops that were available," he said.

At the same time, Kennedy hinted at skepticism toward the Trump administration’s position, asking about the possibility of a nationwide movement urging bakers not to make cakes for gay weddings.

"And more and more bakers began to comply," Kennedy said. "Would the government feel vindicated in its position that it now submits to us?"

The court will rule by June in the case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, 16-111.

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