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.