WASHINGTON (CN) – Considering the case of a Christian baker who refused to design a wedding cake for a gay couple, the U.S. Supreme Court justices struggled Tuesday to find a balance that would protect free speech without opening the door for widespread discrimination.
The liberal justices on the nation’s highest court seemed skeptical of being able to write an opinion that would allow a religious cake baker to not cater a same-sex wedding but would prevent a chef from denying service to black people.
“You have a view that a cake can be speech because it involves great skill and artistry,” Justice Elena Kagan said. “And I guess I’m wondering, if that’s the case, you know, how do you draw a line?”
At the same time, the conservative justices struggled with how to rule in a way that would force the baker to make a cake but not compel people to create things that personally offend them.
“Let’s take a case a little bit more like ours, and it doesn’t involve words, but just a cake,” Justice Neil Gorsuch said. “It is a red cross and the baker serves someone who wants a red cross to celebrate the anniversary of a great humanitarian organization. Next person comes in and wants the same red cross to celebrate the KKK. Does the baker have to sell to the second customer?”
Sitting in the middle, as he often does in hotly contested cases, was Justice Anthony Kennedy. Kennedy seemed hesitant to say free-speech rights trump concerns about discrimination, but at the same time worried about the consequences of a law forcing religious business people to participate in acts that violate their faith.
The highly anticipated case the Supreme Court heard Tuesday, Masterpiece Cakeshop v. Colorado Civil Rights Commission, centers on Jack Phillips, who in 2012 told Charlie Craig and David Mullins he would not bake a cake for their wedding celebration because he objected to gay marriage on religious grounds. Phillips offered to sell them another, pre-made cake for the occasion and the couple ultimately received a free cake from another shop.
Craig and Mullins filed a civil rights complaint with the Colorado Civil Rights Commission, which determined Phillips had violated the state’s anti-discrimination law. The Colorado Court of Appeals upheld the decision, but Phillips appealed, saying the law interfered with both his religious beliefs and his free-speech rights because baking a wedding cake is an expressive act.
The Colorado Supreme Court declined to hear the case, but the nation’s highest court took an interest and added it to its docket.
Speaking at oral arguments before the U.S. Supreme Court on Tuesday on behalf of Phillips, Alliance Defending Freedom attorney Kristen Waggoner said by designing and baking an elaborate wedding cake for a couple, Phillips effectively endorses their marriage. She said wedding cakes are a form of art and that by not making a cake for a gay couple, Phillips wasn’t discriminating against them, but rather declining to use his talents to proclaim a pro-gay-marriage message.
“Mr. Phillips is looking at not the who, but the what in these instances, what the message is,” Waggoner said.
But the justices pressed Waggoner with questions about the limits of her argument. They were particularly interested in why a decision saying Phillips could deny baking a cake for a gay couple would not allow other business owners to deny service to people based on race.
“Is your theory that public accommodation laws cannot trump free speech or free-exercise claims in protecting against race discrimination?” Justice Sonia Sotomayor asked.
The justices were also critical of Waggoner’s contention that Phillips is an artist and that his cakes are protected expressive speech. Kagan asked Waggoner whether professions that seem similar to bakers – such as hair dressers, makeup artists, or chefs – would be able to claim the same protections as Phillips. She scoffed when Waggoner said a chef would not be able to claim the same exemption as Phillips.
“The baker is engaged in speech, but the chef is not engaged in speech?” Kagan asked.
The justices were similarly tough on Solicitor General Noel Francisco, who argued for the United States as a friend of the court supporting Phillips in his free-speech arguments. Francisco argued the government should not be in the business of forcing religious people to express certain viewpoints, which he said is exactly what Colorado did to Phillips.
“Here, you honor, we don’t think you can force a speaker to join the parade,” Francisco said, referencing a related Supreme Court case in which the court held a private St. Patrick’s Day parade did not have to admit an LGBT group.
Justice Stephen Breyer pushed back on Francisco’s claim, saying his argument could present real danger to laws that prevent artisans from discriminating based on race and religion.
“If we were to write an opinion for you, what would we have done to that principle?” Breyer asked. “And, of course, the concern is that we would have caused chaos with that principle across the board because there is no way of confining an opinion on your side in a way that doesn’t do that.”
Colorado Solicitor General Frederick Yarger, who defended the civil rights commission’s decision, and American Civil Liberties Union attorney David Cole, who argued for Craig and Mullins, warned the justices that ruling for Phillips would effectively endorse discrimination in other public places and against other protected groups.
Cole also argued writing a ruling that draws a line at businesses denying service based on race would relegate LGBT people to “second-class” citizenship.
“We don’t doubt the sincerity of Mr. Phillips’ convictions,” Cole said. “But to accept his argument leads to unacceptable consequences.”
Yarger and Cole attempted to skirt Phillips’ arguments about free expression by saying Phillips would not have to sell a cake to a gay couple with any design he would not create for anyone else.
The more conservative justices on the court were not convinced by this argument, conjuring several hypothetical “unacceptable consequences” of their own that could come from such a decision.
Justice Samuel Alito questioned whether the rule would require a baker to make a cake for a couple wanting to celebrate the anniversary of Kristallnacht if the baker also sold an identical cake to a couple celebrating a Nov. 9 wedding anniversary.
Chief Justice John Roberts, meanwhile, repeatedly pressed both Cole and Yarger about whether Catholic Charities Legal Network, which provides pro bono legal services, would have to work on cases related to a same-sex marriage even though the concept runs directly counter to the organization’s proclaimed religious beliefs.
Yarger told Roberts the service would likely need to provide the legal services if it was operating in the marketplace.
“So Catholic Legal would be put to the choice of either not providing any pro bono legal services or providing those services in connection with same-sex marriage?” Roberts asked.
While Kennedy seemed sympathetic to the human dignity issues Yarger and Cole raised, he was also intently focused on the process by which the Colorado Civil Rights Commission reached its decision.
Kennedy questioned Yarger about comments a commissioner in Phillips’ case made, saying freedom of religion being used to “justify” discrimination is a “despicable piece of rhetoric.”
Kennedy suggested the comment called into question the impartiality of the organization’s decision.
“Counselor, tolerance is essential to a free society,” he said. “And tolerance is most meaningful when it’s mutual. It seems to me the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
Oral arguments on Tuesday ran over the allotted hour by roughly 30 minutes, with Roberts granting each party’s attorneys extra time at the lectern to answer the justices’ questions.