The case before the Supreme Court -- Masterpiece Cakeshop v. Colorado Civil Rights Commission -- appeared on Tuesday to hinge upon Justice Anthony M. Kennedy, who may cast a deciding vote for a closely divided court. During a nearly 90 minutes of oral argument, Kennedy gave both sides of the debate some cause for hope and dismay. 

The case is over whether the owners of a bakery in Colorado were within their constitutional rights to refuse to bake a cake to the liking of a pair of men. In July 2012, the two men came to Jack C. Phillip’s shop requesting that he make a cake to celebrate their same-sex ceremony. Philipps declined the request, saying he could not design cakes for same-sex wedding ceremonies. While he offered to make any other type of baked goods or sell them a pre-made cake, he said he would not design a cake promoting a same-sex wedding ceremony. Phillips soon began receiving harassing and threatening phone calls because of his decision to, in the words of his counsel Alliance Defending Freedom, “not use his artistic talents to design a cake celebrating the couple’s same-sex marriage.”

An attorney for the baker who owns Masterpiece Cakeshop told the court that Phillips should not be forced to design his custom-made cakes for same-sex couples against his religious beliefs and should therefore be exempt from Colorado’s anti-discrimination law. 

The Trump administration filed a brief on behalf of Phillips, which may be the first time the federal government has argued for an exemption to an anti-discrimination law. The government Phillips argued that his cakes are a form of expression, and that he cannot be forced to use his artistic talents against his conscience. .

Solicitor General Noel J. Francisco, representing the Trump administration, told the court that the exemption should apply only to a narrow category of business owners. Francisco used as an analogy an African American sculptor, who he said should not be forced to create a cross that would be used for a Ku Klux Klan ceremony. He argued that the First Amendment protects free speech and free exercise of religion — protect Phillips from Colorado’s public accommodations law, which requires businesses to serve customers equally regardless of “disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.”

Justice Kennedy said on Tuesday that he is concerned that a ruling in Phillips’ favor would allow other shops to place signs saying that they refuse to provide wedding services to same-sex couples. That, Kennedy said, would be “an affront to the gay community.”

Later, Kennedy asked Colorado Solicitor General Frederick Yarger about a statement by a member of the Colorado Civil Rights Commission who noted that religious beliefs had in the past been used to justify other forms of discrimination, such as slavery and the Holocaust. It is, the commission member contended, “one of the most despicable pieces of rhetoric that people can use their religion to hurt others.” Kennedy asked Yarger if that particular member of the commission had based his decision on hostility to religion, could the judgment against Masterpiece stand? He then told Yarger that “tolerance is essential in a free society.” Colorado, Kennedy said, has not been very tolerant of Phillips’ religious beliefs. 

Chief Justice John Roberts, and Justices Samuel Alito and Neil Gorsuch, also seemed to favor Masterpiece’s arguments, while the court’s four more liberal justices supported the state and the same-sex couple. Appearing to fear a constitutional crisis pitting religious freedoms against the state, Justice Stephen Breyer said a decision in favor of Masterpiece could “undermine every civil rights law since year 2.” Breyer said that the court finds it difficult to balance protection for religious freedom against the claims of the state: “Obviously, we want a distinction that will not undermine every single civil rights law.”

Kennedy said that there are many other businesses whose transactions involve the right to free speech. Directing a question at U.S. Solicitor General Noel Francisco, who is backing the baker, Kennedy asked Francisco to conjecture what would happen if the court rules for the baker, and bakers all over the country then started receiving requests to not bake cakes for gay weddings, “Would the government feel vindicated?” he asked. 

Justice Elena Kagan -- an Obama appointee -- asked whether if a hairstylist, chef, or cosmetics artist could also refuse to provide services with the claim that their work is Constitutionally-protected speech. “Why is there no speech in creating a wonderful hairdo?” Kagan asked. 

“Who else is an artist?” asked Justice Ruth Bader Ginsburg.

Phillips’s attorney, Kristen K. Waggoner, distinguished between the baker’s highly-stylized, sculpted creations and the services provided by other professions that she said were “not speech.” Kagan rejoined, “Some people might say that about cakes.” 

Businesses in the wedding industry, including photographers, florists, and others have complained that being forced to offer services to same-sex weddings violates their rights. However, courts have routinely turned them down. 

In 2012, Charlie Craig and David Mullins planned to marry in a same-sex ceremony in Massachusetts, where it was legal. In Colorado, traditional marriage was still recognized at the time. They planned to return to Denver for a celebration and get a cake from Masterpiece. When the two men went to the bakery with Craig’s mother, they asked Phillips to make a cake for their same-sex celebration. Phillips refused. Phillips recalled: “Our conversation was just about 20 seconds long. ‘Sorry guys, I don’t make cakes for same-sex weddings.’”

When the two men found out that the state’s public accommodations law specifically prohibited discrimination based on sexual orientation, they filed a complaint with the Colorado Civil Rights Commission. The commission ruled against Phillips, and the appeals court upheld the decision.

“Masterpiece remains free to continue espousing its religious beliefs, including its opposition to same-sex marriage,” Judge Daniel M. Taubman wrote. “However, if it wishes to operate as a public accommodation and conduct business within the State of Colorado, [the law] prohibits it from picking and choosing customers based on their sexual orientation.” Phillips is faced with paying a fine or deciding to bake the cakes in violation of his beliefs and also re-educating his family business in anti-discrimination laws.

The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission. A ruling is due in June 2018.

In 2014, blogger Theodore Shoebat of shoebat.com went to 13 LGBT and gay-owned bakeries, requesting that they make a pro-traditional marriage cake that would read "gay marriage is wrong." All refused to bake the cake. One person at a LGBT bakery denounced for his alleged "hate speech" and said a cake supporting traditional marriage "went against their beliefs."



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Martin Barillas is a former US diplomat and the editor of Spero News.

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