Supreme Court appears split in fight over cake for gay wedding

A Christian baker who refused to make a wedding cake for a same-sex couple found unexpected traction for his position at the Supreme Court Tuesday, as the justices wrestled with a high-profile clash between religious beliefs and anti-discrimination laws.

The high court’s champion of gay rights, Justice Anthony Kennedy, seemed troubled by Colorado officials’ treatment of Masterpiece Cakeshop owner Jack Phillips after he turned down Charlie Craig and David Mullin’s request for a custom cake to celebrate their wedding in 2012.

"Tolerance is essential in a free society. Tolerance is most meaningful when it’s mutual," Kennedy said during oral arguments that were scheduled for an hour but stretched to nearly an hour and a half. "It seems to me the state in its position has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs."

Kennedy dismissed as "too facile" a lawyer’s arguments that Phillips had discriminated against the gay couple based on their identity. And the Reagan appointee and frequent swing justice suggested Colorado went too far in ordering Phillips to implement remedial training for his workers.

"He has to speak about that. He has to teach about that to his family," Kennedy said.

However, Kennedy also expressed concern for the plight of gay couples who might be refused services, saying signs indicating they were unwelcome could violate their "dignity." And he asked a Trump administration lawyer if the government "would feel vindicated" if a widespread movement developed to deny cakes to same-sex couples.

The rest of the court seemed to divide along the usual ideological lines, with liberals speculating about the damage a ruling for the baker could do to laws against racial, gender and religious discrimination, while conservatives expressed worries about intruding on deeply held religious beliefs.

Liberal justices warned that allowing a cake-maker to avoid anti-discrimination laws would lead to photographers, jewelers, tailors and caterers seeking to level the same claims.

Phillips’ attorney, Kristen Waggoner of the Alliance Defense Fund, called Phillips’ work a "temporary sculpture" and said concerns about other vendors trying to avoid serving gay couples were exaggerated.

"The tailor is not engaging in speech, nor is the chef," she said.

"The baker is engaged in speech, but the chef is not engaging in speech?" Justice Elena Kagan replied.

Even a make-up artist might decline to take part, Kagan noted. “It’s called an artist,” she noted, to laughter from the court.

Justice Sonia Sotomayor noted that a major sandwich chain suggests its employees are deeply creative. "There are sandwich artists now," she observed, using a title Subway has given to its employees.

Noting that “the primary purpose of food is to be eaten,” Sotomayor proposed a kind of functional test, where objects to be used or consumed wouldn’t be considered expressive enough to warrant First Amendment protection.

But Justice Samuel Alito noted that buildings are intended to be used and lived in, although “architectural design” surely has a large creative element to it.

Alito seemed to think Waggoner would embrace the idea, but she quickly rejected it, perhaps out of concern that allowing protection for architects could be seen as countenancing housing discrimination.

Liberals had a similar moment as Justice Ruth Bader Ginsburg asked the couple’s attorney, David Cole of the American Civil Liberties Union, whether Phillips could be compelled to decorate a cake with the phrase “God bless you” and the names of a same-sex couple if he offered a similar cake to a heterosexual couple.

At that point, Kagan jumped in. “You don’t have to answer that question, Mr. Cole,” she said. She seemed concerned that such a direct command to the baker to write something he disagreed with would be seen by a majority of the court as unconstitutionally compelling speech.

Phillips says his policies for his bakery arise from sincerely held religious beliefs that also lead him to decline to make Halloween cakes, as well as cakes with anti-American or sex-related themes or cakes containing alcohol.

Activists and lawyers backing the couple say the courts resolved the core issue in the case about half a century ago, turning down claims by white business owners in the South that their religious beliefs entitled them to refuse to serve African-American customers.

While Phillips’ case has become a cause celebre for conservative Christian activists nationwide, his lawyers and others taking his side in the dispute, including the Trump administration, have largely focused their arguments on free speech rights. The core claim in the case is that Phillips is being compelled to create expression he does not wish to produce, violating his First Amendment right to free speech.

The intrusion on his religious freedom has taken a back seat in the legal arguments, perhaps as a strategy aimed at winning over Kennedy, who is seen as the likely swing vote in the case.

Those backing the couple say that the free-speech claim is a warmed-over version of an issue raised back in 1964 by Maurice Bessinger, the owner of a Columbia, South Carolina, barbecue stand called Piggie Park. He defied federal civil rights laws by claiming he had a First Amendment right to his anti-integration beliefs. Courts rejected his contention, with the Supreme Court calling his claims "patently frivolous" in a brief 1968 ruling.

Some who side with the baker in the current case, including the Trump administration, have argued that the government’s interest in preventing discrimination based on sexual orientation isn’t as strong as it is for race.

Justice Ruth Bader Ginsburg, who was a leading women’s rights advocate before taking the bench, asked Solicitor General Noel Francisco how the courts should differentiate between various anti-discrimination protections.

"I think pretty much everything but race would fall in the same category," Francisco said in his first argument to the court since being sworn in several months ago.

Cole disagreed. "To do that would be to consign gay and lesbian people to second class status," he said. The ACLU lawyer said Francisco and the Trump administration were seeking to put race in a separate category because they recognize the "unacceptable consequences" of allowing individual beliefs to override anti-discrimination laws created to protect African Americans.

The wedding cake case is the court’s first significant foray into the issue of gay rights since the landmark 2015 ruling that the Constitution requires states to recognize same-sex marriage.

The dissenters in that case warned that the decision guaranteeing gay-marriage rights would trigger a wave of litigation from religious individuals and organizations resisting efforts to force them to provide services to same-sex couples.

Source: POLITICO – TOP Stories