Justices Hear Free-Speech Case Centered on Wedding Cake

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.

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