WASHINGTON — Justice Anthony Kennedy is again at the center of debate over a major case about gay rights, as a closely divided Supreme Court heard arguments over whether a Colorado baker can be forced under state antidiscrimination laws to provide a cake for a gay couple’s wedding.
The baker, Jack Phillips, is a Christian who opposes same-sex couples’ marriages and refused to make a wedding cake for Charlie Craig and David Mullins, a gay couple. Phillips runs Masterpiece Cakeshop with his wife, and they were found to have violated Colorado’s public accommodations law, which bars sexual-orientation discrimination.
On Tuesday, Masterpiece Cakeshop, represented by the Alliance Defending Freedom and backed by the US government, faced off against Craig and Mullins, represented by the ACLU, and the Colorado Civil Rights Commission in nearly 90 minutes of arguments. The justices asked extensive questions about just who and what qualifies as artistic expression — and when that merits exemption from civil rights laws.
At its most basic level, Masterpiece Cakeshop and the US government argue that the First Amendment protects creative people from being forced to create things that “inherently” send a message if they oppose that message. On the other side, the ACLU and Colorado argue that public accommodations laws are “content-neutral” and should apply to everyone — no exceptions.
For his part, Kennedy expressed discomfort with the idea that broad consequences could flow from a decision in favor of the baker, effectively watering down the exercise of the marriage right established in 2015’s Obergefell v. Hodges. At the same time, he later also called it “too facile” to suggest that all opposition to same-sex couples’ marriages should be considered anti-gay discrimination.
When Kristen Waggoner, the lawyer for Masterpiece Cakeshop, said that she was not arguing for a decision that would allow a baker to ban a gay couple from purchasing an off-the-shelf cake, Kennedy pressed her on the point and asked why not? “Didn’t he express himself when he made it?"
The question was the first of many about the difficult line-drawing that would be involved in any decision favoring the baker. Waggoner answered that such a situation wouldn’t be covered because “his speech has been completed” in that situation before the customer appeared — but other hypotheticals about who would be exempted from the antidiscrimination law and the extent of the exemption led to less definitive answers.
Looking at the range of potential exemptions to nondiscrimination laws that could be argued for under a ruling for the baker, Kennedy mused at one point, "It means that there's basically an ability to boycott gay marriages."
Charlie Craig, left, and Dave Mullins
On the other side, though, the justice expressed concern to Colorado Solicitor General Frederick Yarger about whether Colorado and the commission have shown “hostility to religion” based on their actions — a detour picked up by Kennedy’s more conservative colleagues.
“Tolerance is most meaningful when it’s mutual,” Kennedy said pointedly to Yarger, who responded that the legislative record for Colorado’s public accommodations law shows that Colorado spent significant time considering the legislation and the views of religious people before passage, including an exemption for places of worship.
When Kennedy questioned whether opposition to same-sex couples’ marriages could always be considered a type of sexual orientation discrimination, the ACLU’s David Cole responded that the court had faced a similar question in a 1983 case relating to Bob Jones University’s then-existing ban on interracial dating or marriage. Cole said, “[T]his court said that's race discrimination.” Ultimately, Cole argued, "I don't think you can carve out exceptions ... to a content-neutral regulation of public accommodation sales in the retail context." Essentially, he argued that these kinds of laws are not meant to have exceptions.
Masterpiece Cakeshop and the US government pointed to a different case — the 1995 decision that allowed a private group to ban a gay contingent from its St. Patrick’s Day parade.
Suggesting that the case is "the flip side" of the parade case, US Solicitor General Noel Francisco said, “We don’t think you can force a speaker to join the parade.”
That question ultimately could decide the case: Is baking a cake participating in the wedding in a way that sends a message — equivalent to marching in the parade — or not?
The ACLU’s Cole thinks not. He responded to Francisco’s argument: “No one is suggesting that the baker has to march in the parade,” and adding that, by way of example, “No one thinks the baker is wishing [someone] happy birthday” when a person buys a birthday cake.
As Kennedy sought out answers to his questions — often focused on the dignity of people on both sides of the case — his colleagues pressed the lawyers on scenarios that could be affected by the eventual decision in Tuesday’s case.
Minutes into the argument, Justice Elena Kagan pondered whether a hair stylist, like a baker, is also creating expressive speech for a wedding that could be refused.
"Why is there no speech in creating a wonderful hairdo?" Kagan asked. "The makeup artist? It's called an artist. It's the makeup artist."
Waggoner said she was not aiming to encompass the work of stylists as protected speech, but the baker's recusal should be protected.
"I'm quite serious, actually, about this," Kagan responded, echoing a sentiment from the court's more liberal justices who had joined Kennedy in ruling for same-sex couples in 2015 that it would be difficult to corral a ruling for Masterpiece Cakeshop in such a way that it doesn't allow creeping forms of discrimination. She raised the possibility of a tailor or a chef who, saying their work is artistic, might wish to refuse to fit a dress or craft a meal for a same-sex couple's event.
Waggoner walked a fine line between saying she wanted a ruling for her client but not a decision that creates a slippery slope, thereby possibly eroding civil rights laws for other classes of people or protecting an endless type of service providers. And yet, she sought a decision open-ended enough that other creative businesses that sell wedding services could turn away same-sex couples. Waggoner drew this line by insisting she wasn't asking to protect tailors and chefs, for example, but rather the baker's cake, which is inherently a message.
Justice Sonia Sotomayor questioned why — even if there is a line to be drawn — the cake baker should be on the exempted side of the line. "The primary purpose of a food of any kind is to be eaten," she said. "There are sandwich artists," she said, but a sandwich-maker does't claim to create a First Amendment-protected lunch.
Kagan synthesized the these scenarios into three "axes" of questioning, each one exploring how ruling for the baker opens further questions in a different direction. Many questions centered around which sort of business would be afforded the right to refuse service, and at what point their wares became a constitutionally protected form of expression. "A second axis is, well, why is this only about gay people?” she said, touching on questions about how a ruling could apply to racial discrimination, sex discrimination, or even, as raised at one point, disability discrimination. "Why isn't it about race?" Finally, she questioned how a decision could be confined solely to products for weddings. "What else counts?" Kagan asked — saying a funeral, bar mitzvah, or birthday could be affected.
"So there are all three of these that suggest like, whoa, this doesn't seem like such a small thing," Kagan concluded.
Justice Samuel Alito seemed to offer Waggoner an opening by suggesting that something functional that also has the artistry of fine architecture qualifies as expressive. But Waggoner objected on that point, saying architecture didn't meet the bar.
Justice Stephen Breyer seized on the stumble, quickly pondering how strange it would be to protect “this cake baker” but not, for example, Michelangelo's centuries-old architectural feats in Italy.
DOJ’s Francisco had his own scenarios, saying the law should not compel a black sculptor to fashion a cross for white supremacist klansmen. Nor, he said, should a gay opera singer be forced to perform for the notoriously anti-gay Westboro Baptist Church.
From the more conservative justices, Chief Justice John Roberts tried to put limits on how far a religious-based organization must go if it provides some form of public accommodation. He twice invoked a possible Catholic legal assistance firm, asking if such a group — which generally provides legal support that isn’t religious in nature — should still, then, be required to violate its beliefs by assisting a same-sex couple.
Roberts asked if the hypothetical Catholic group "would have to provide representative services to someone who had a similar problem in connection with a same-sex marriage?"
Frederick Yarger, the solicitor general for the state of Colorado, which is representing the Colorado Civil Rights Commission, said yes — if the Catholic group provides the same service to different-sex couples.
Highlighting the line-drawing question, Breyer bluntly stated at one point: "We can't have 42,000 cases, each kind of vegetable that the preparer thinks is something special." He concluded that if the court were to rule for Masterpiece Cakeshop, it would have to provide some clarity about how to approach the broad range of similar types of cases — suggesting that limiting a ruling to cake or making it wholly open-ended is untenable for the court.
This story has been updated to reflect that Justice Anthony Kennedy said "tolerance is most meaningful when it's mutual." The quote corrects "mutual" from "neutral." Additional quotations were clarified as well, to reflect the wording provided in the Supreme Court's transcript of the arguments.