All eyes were on Justice Anthony Kennedy Tuesday at a riveting Supreme Court argument where the issue was whether a baker may refuse to create a wedding cake for a same-sex couple.
Kennedy was the center of attention because, with the rest of the court appearing to be evenly split, he very likely will cast the deciding vote in the case. And he is the author of every major decision favoring gay rights that the Supreme Court has ever decided.
A Reagan appointee, Kennedy is at the same time a fierce defender of the First Amendment right of free speech and the free exercise of religion. But the clashes inherent in those rights appeared to prompt some conflicting questions and positions from Kennedy.
The case before the court involves much more than wedding cakes, and it could have huge implications for all retailers and service providers.
That's because the baker, Jack Phillips, owner of the Denver-area Masterpiece Cakeshop, claims his First Amendment right of free speech and religion exempts him from the state's anti-discrimination law. To Colorado, however, he is a retailer and is barred from discriminating based on race, gender, religion or sexual orientation.
Tuesday's argument opened with a series of hypotheticals posed by the court's liberal justices. The questions were aimed at Phillips' claim that baking a cake for a same-sex wedding would unconstitutionally compel him to speak as an artist and cake creator on behalf of same-sex marriage, which he opposes.
When Michelangelo is not an artist, but a baker is
"At the wedding ceremony, the speech is of the people who are marrying, and perhaps the officiant," Justice Ruth Bader Ginsburg said. "But who else speaks?"
The artist speaks, replied Kristen Waggoner, representing the baker. "It's as much Mr. Phillips' speech as it would be the couple's."
"Who else then is an artist?" Justice Ginsburg asked. "The person who designs the wedding invitations, and the menus?"
"How about the jeweler, or the hairstylist, or the makeup artist?" Justice Elena Kagan questioned.
No, replied Waggoner, none of those are artists.
Why not? asked Kagan, noting that a makeup artist has the word "artist" in her name and may be using her creativity and artistry, too.
And what about an architectural design? asked Justice Samuel Alito. Waggoner answered that it would not be protected.
"So in other words, Mies or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now that — that really does baffle me, I have to say," Justice Stephen Breyer said.
Jack Phillips' artistry is different, Waggoner insisted, contending at one point that a chef is not engaged in speech when she creates food for a wedding or a wedding anniversary but a baker is.
"We're asking these questions," Justice Breyer said, "because we want some kind of distinction that will not undermine every civil rights law." Those civil rights laws have long barred discrimination based on race, sex and religion.
Solicitor General Noel Francisco, making his first appearance on behalf of the Trump administration and supporting the baker, agreed that the court should not allow such exceptions when discrimination is based on race. But he urged the justices to allow some narrow cases of discrimination, such as in this case, when the discrimination is based on gender, or religion, or sexual orientation.
"The problem for you," Justice Kennedy remarked, "is that so many of these examples ... do involve speech. It means that there's basically an ability [for businesses] to boycott gay marriages."
If you prevail, asked Kennedy, "could a baker put a sign in his window saying 'We do not bake cakes for gay weddings'?"
Yes, replied Francisco. As long as the sign says the baker does not make custom-made cakes for gay weddings.
"I think that's an affront to the gay community," Kennedy said. He added a few moments later that if the Trump administration's position were to prevail, bakers all over the country might receive messages urging them not to bake cakes for gay weddings.
"Tolerance is essential"
But when Frederick Yarger, the lawyer for the state of Colorado, went to the lectern, a clearly angered Kennedy pointed to a statement by one of the seven members of the state Civil Rights Commission who was quoted saying, "freedom of religion used to justify discrimination is a despicable piece of rhetoric."
Suppose, said Kennedy, that we thought at least one member of the commission based his decision against the baker in this case on a hostility to religion. "Could your judgment then stand?" he asked.
Lawyer Yarger argued that while a baker may refuse to put a message on a wedding cake if he finds it offensive, he may not refuse to sell a cake to a gay couple if he has sold the same cake to a straight couple. That, said Yarger, is the essence of discrimination based on identity, just as it would be if a baker refused to sell the same cake to an interracial couple or an interfaith couple.
Justice Kennedy wasn't buying it.
"Tolerance is essential in a free society," he told the lawyer, "and tolerance is most meaningful when it's mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs."
Representing the same-sex couple, lawyer David Cole of the American Civil Liberties Union told the justices that there is no evidence here that the state was targeting religion. Pressed by the court's conservatives, he reminded them of the late Justice Antonin Scalia's opinion declaring that a broad general law regulating conduct that is neutrally enforced is constitutional even when it has an incidental effect on some people's religious views. Otherwise, said Scalia, we would be in a world that effectively permits "every citizen to become a law unto himself."
Cheers and tears outside the Supreme Court
While the argument progressed inside the court, there was a festive mood outside. Supporters of both sides played music, chanted and carried signs and banners. All in polite good humor. But when the litigants emerged from the courtroom, there were tears on both sides.
Phillips choked up as he read a statement describing the harassment and difficulties he has faced in his five-year legal battle against the state of Colorado.
"Stopping the wedding art has cost us much of our business — so much so that we are struggling to make ends meet and keep the shop afloat," he said. "It's hard to believe the government is forcing me to choose between providing for my family and my employees, and violating my relationship with God."
Dave Mullins and Charlie Craig, the couple turned away by Phillips, came to the microphones, too.
"We're two regular guys," said Craig. "Dave and I do not have an agenda; we do, though, have hopes and dreams. ... We want to grow old together and most importantly we want everyone to be treated equally."
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