Pivotal Justice Anthony Kennedy sent mixed messages during a spirited U.S. Supreme Court argument Tuesday over a Colorado baker who refuses to make cakes for same-sex weddings.
It would be an “affront to the gay community” if bakers could effectively boycott same-sex marriages or put up signs saying they don’t make gay-wedding cakes, Kennedy said.
But later he said Colorado had been “neither tolerant nor respectful” of the religious views of Denver-area baker Jack Phillips. The state has ordered him to either make cakes for gay weddings or stop making wedding cakes at all.
The argument marks the first full-scale fight over gay rights since the high court legalized same-sex marriage nationwide in 2015. The justices are weighing competing values, with free speech and religious freedom on one side and equality on the other.
By all appearances, the case will divide the justices along ideological lines. The four Democratic appointees all aimed skeptical questions at Phillips’s attorney and the lawyer for the Trump administration, which backs the baker. They questioned whether he could claim a free speech right related to his cakes.
“When have we ever given protection to a food?” Justice Sonia Sotomayor asked.
The court’s conservative wing directed most of its fire at Colorado’s lawyer and the attorney representing David Mullins and Charlie Craig, the couple Phillips turned away when the two visited his Masterpiece Cakeshop in 2012 to discuss a wedding cake.
Justice Samuel Alito questioned how Phillips could be accused of discrimination when gay marriage wasn’t yet legal in Colorado. The couple were planning to marry in Massachusetts and hold a reception in Colorado.
“If Craig and Mullins had gone to a state office and said, ‘We want a marriage license,’ they would not have been accommodated,” Alito said.
The case will have its most direct impact on the approximately 22 states that bar discrimination on the basis of sexual orientation by establishments that do business with the public. Lower courts in some of those states have ruled that florists, photographers and building owners must provide the same services for gay weddings as for opposite-sex ceremonies.
The case, which the court will decide by June, is Masterpiece Cakeshop v. Colorado Civil Rights Commission, 16-111.