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All eyes on Kennedy

A Christian cake baker had a good day in court

All eyes on Kennedy

(Jacquelyn Martin/AP)

WASHINGTON—After the arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the sidewalk in front of the Supreme Court on Tuesday was teeming with interested parties from both sides of the case. On one side of the court steps stood Christian cake baker Jack Phillips and Christian florist Barronelle Stutzman, whose business Arlene’s Flowers has a case pending at the Supreme Court similar to Phillips’ case. On the other side of the steps stood Charlie Craig and David Mullins, the gay couple that brought the lawsuit against Phillips’ Masterpiece Cakeshop in 2012, for his refusal to create a custom wedding cake for them based on his Christian beliefs about marriage.

Craig and Mullins talked about the “pain and humiliation” of being denied a cake, while Phillips talked about the weight of the five-year court battle on his family. Since he lost in Colorado state courts, he has had to stop selling custom wedding cakes altogether, which had made up 40 percent of his income.

"It’s been very hard on me and my family,” Phillips said. “We are struggling just to make ends meet.”

Stutzman added, “They make you choose between your faith and your life.”

That’s precisely the conflict the Supreme Court justices were trying to resolve on Tuesday: Would providing an accommodation to religious bakers like Phillips undermine civil rights laws? Was it compelled speech to require him to put out a cake that conveys a certain message? Is a wedding cake a form of speech, and what counts as speech? Is a wedding hair stylist using expression in hairdos?

“We have a very complex cake,” said Justice Anthony Kennedy, pausing to correct himself. “Case. Case and cake.”

Due to the complexity of the case and the lively debate between the justices, Chief Justice John Roberts repeatedly extended extra time to lawyers in the case—a rare move. Once again all eyes turned to Kennedy, who is the court’s gay rights champion but who seemed much more sympathetic to Phillips’ situation than anticipated. Early in the arguments Kennedy was concerned about cake shops having a sign in a window, for example, that said they didn’t do cakes for gay weddings. He also wondered, if the justices ruled in Phillips’ favor, whether bakers “all over the country” would be pressured not to sell cakes for gay weddings.

But then a key quote came in the middle of the hearing, when Kennedy stated (instead of asking a question) to Colorado Solicitor General Frederick Yarger: “Tolerance is essential in a free society, 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’ beliefs.” It sounded as if he was trying out a line for an opinion.

“Tolerance is essential in a free society, and tolerance is most meaningful when it’s mutual.” —Kennedy

Kennedy was also critical of one commissioner’s remarks about Phillips’ religious freedom claims as “despicable,” hinting that that might count as viewpoint discrimination. “Suppose we thought at least one member of the commission based its decision on the grounds of hostility to religion, could your judgment then stand?”

Justice Neil Gorsuch brought up a concern about the Colorado order to Phillips, requiring that he retrain employees in light of the lawsuit from the gay couple. “Why isn’t that compelled speech?” he asked. Kennedy latched onto that too: “The state law in this case supersedes our religious beliefs, and he has to speak that to his family.”

All the justices had a dozen hypotheticals to throw at the lawyers, illustrating how difficult the line is to draw here—if it isn’t government-compelled expression for a baker to bake a custom cake, is it compelled expression if he delivers the cake to the ceremony, or if he has to cut the cake?

Alliance Defending Freedom’s Kristen Waggoner, arguing her first Supreme Court case, had clearly prepared for an array of hypotheticals. A premade cake is not speech (“it’s already been placed in a stream of commerce”), so Christian cake bakers should sell any generic wedding cakes off the shelves to gay couples. A hairdo is not speech. Other forms of participation in a wedding ceremony, like delivering a cake in the event, would fall under a free exercise claim.

“The jeweler?” Kagan asked. “Where do you put the tailor?”

“We want some kind of distinction that will not undermine every civil rights law,” said Justice Stephen Breyer.

Waggoner’s test was whether the objection is to a message (as she argues was the case with Phillips) or the person. “That’s usually very obvious,” she said.

“Well actually, counsel, that seems to be a point of contention,” said Gorsuch dryly.

Associated Press/Photo by Jacquelyn Martin

Jack Phillips speaks to reporters outside the Supreme Court following Tuesday’s arguments. (Associated Press/Photo by Jacquelyn Martin)

American Civil Liberties Union lawyer David Cole, representing the gay couple, argued that the cake sale was about the person, not the message—that Phillips only refused because of the couple’s sexual orientation, and therefore, identity. But Kennedy was skeptical and said a baker could sell to gay people as Phillips has done, but not do gay weddings. “Your identity thing is too facile,” he said.

Likely slyly addressing Kennedy who wrote the gay marriage decision, Roberts noted that Obergefell v. Hodges “went out of its way to talk about the decent and honorable people who may have opposing views,” and that therefore it was unfair to compare them to racists. With Kennedy’s vote, the conservative justices might have a majority in this case. They could come to a very creative and narrow majority many different ways.

Outside, the divide remained fierce. A DJ with the American Civil Liberties Union blasted tunes over those who were speaking on Phillips’ side. A man struggled into a homemade costume of a cardboard Bible. Megaphone chants of “equal justice under law” drowned out the comments from Phillips and Stutzman, but quietly their lawyers felt some optimism. 

Emily Belz

Emily Belz

Emily is a senior reporter for WORLD Magazine based in New York City. Follow Emily on Twitter @emlybelz.


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  • OldMike
    Posted: Tue, 12/05/2017 05:05 pm

    I do not believe for a second that it is “equal” that many LGBTWhatever advocates are seeking, including those in this case. Many on that side want to squash us, make it a hate crime with real penalties, for us to express Biblical views. 

    I praise the Lord that this is getting what appears to be an honest examination by the Supremes. 

  • VSKluth's picture
    Posted: Tue, 12/05/2017 05:07 pm

    I have little confidence that Justice Kennedy will rule against his past precendents.  The homsexual agenda has hijacked the "civil rights" movement approach, and is likening gender identity to skin color, which is ridiculous -- we've read of homsexuals repenting, but I've never heard of a man repenting the color of his skin (Jeremiah 13:23).

  • NT
    Posted: Wed, 12/06/2017 02:16 pm

    I would like to disagree with you, but can't. I fear that Kennedy will write something about tolerance being a two-way street, the horrors of anti-religious bias, but then will say "however" and tell us why these do not matter. He is in this too deep to turn back on the road he has helped send this nation down.

  • Rob S
    Posted: Tue, 12/05/2017 05:27 pm

    This seems fairly clear if you use a similar situation with different parties.  Party A is a Jewish restaurant owner and caterer.  Party B is a Christian diner and patron.  Party B should reasonably expect that Party A will serve him at the restaurant.  However, Party B should not reasonably expect Party A to cater her Easter party and make cookies that say Happy Easter – Jesus is Alive. 

    The first honors accommodation laws and doesn’t discriminate.  The second requires Party A to accommodate not a just person but a specific event.  I don’t think many Christians would be offended in the situation above, but some gays are offended when their event or action is not accepted by everyone even if they are accepted in every other way.

  • RC
    Posted: Wed, 12/06/2017 10:37 am

    Rob S you provide some excellent examples, but I think it is the radical gays who are saying you cannot tell them their gay life style is morally wrong.  Having the freedom to be morally wrong is not enough.  Anyone who does or says anything that communicates that the gay life style is morally wrong, is subject to persecution and legal prosecution.  

    Posted: Wed, 12/13/2017 10:14 am

    Let's be honest. Even in Israel folks celebrate Christmas. Bethlehem is majority PLO/muslim but they "cash in" on everything connected to the Lord's birthplace. A Jewish bake could make and sell Easter Cookies and not in any way genuinely compromise his or her Judaism. In terms of dietary restrictions my hunch is forcing a Jewish meat cutter to prepare pork would be rejected by any Court


  • HenryC
    Posted: Wed, 12/06/2017 02:35 pm

    At the base of this case is the belief that someone cannot tell someone else their lifestyle is wrong and I won't support it by my actions. This is not saying that one will attack your lifestyle, it is saying another must support it. If this is decided to be true, there is no liberty in the US anymore, not just religious liberty either.

  • infohighwy
    Posted: Wed, 12/06/2017 04:20 pm

    I think that the court may come up with a decision that separates commerce from artwork. For example, buying soap in a store is commerce. Buying a car from a dealer is commerce. However, ordering a billboard be put up with a certain message, or requesting certain advertising on TV can, and has been, subject to rules by the medium owner as to what is appropriate or not. I think that newspapers can still refuse certain advertising if they so desire.

    In a like manner, the court may say that a baker must sell the guys a cake, but is not compelled to put a given message on it, because the commerce portion of the sale is protected from discrimination, but the artwork portion of the sale is not. What did we think when a store refused to put a pro-Trump message on a cake? Maybe they did not want to make America great again. Did we feel we should compel the Hillary advocate to do that?

    The unintended consequences of allowing commerce to discriminate (without artwork being involved) is that a restaurant could retreat back to the 1950s era of discrimination, or find a way to discriminate against Christians, or even married people who are wearing a wedding ring. I think most of us would find the 1950s a era best left in the history books and not revived. When I read that the Pentagon in Washington has twice as many restrooms as needed today because when it was built, restrooms were segregated under Virginia law (fun fact for today!), I have to ask myself, REALLY? Did that REALLY happen? Apparently that can be seen to this day in the Pentagon, but perhaps they have converted some of the restrooms since then for other purposes (very small meeting rooms, with a wet bar?).

    In essence the court may say that I cannot refuse to sell anyone a powered megaphone if that is what I'm selling, but can refuse to go out in front of the store and speak a message of the customer's choosing through that powered megaphone to the public. One is commerce, one is artwork. They should be seen in that differential light. Mixing commerce and artwork will be nothing but grief and problems ever more in the future. Each should be seen in its own light.

    Posted: Wed, 12/13/2017 10:08 am

    Did anyone hear the recent NPR discussion of this case? It is quite the sticky wicket here and Solomonic "split the baby" wisdom is nowhere on the judicial horizon. You mourn Scalia even more today than ever, no? Ditto Robert Bork

    NPR had an attorney from Lamda Legal who spoke of cases they are now litigating in Mississippi. Can a LaMaze instructor tell a same sex couple (lesbians one hopes) that other class participants are ill at ease with the women's presence in the class and thus exclude them from it? That scenario is of course more akin to the "heckler's veto" of speech. 

    My prediction is this: if the Masterpiece man has been explicit about his beliefs [ie closed on Sunday's,  ICTHUS symbol or Scripture on his business cards] there will likely be an exemption granted. What we all need to recognize here however is that this is a state law. If upheld it in no way would be imposed on states with no such law or enforcement commission. The baker can still relocate to Alabama, Nebraska or any number of states where the Colorado commission has no enforecment authority. States via voters or legislators can and do enact bad laws. But even bad laws can be constitutional.

  •  Greg Mangrum's picture
    Greg Mangrum
    Posted: Tue, 01/09/2018 11:06 pm

    I sure hope Masterpiece wins (but who knows with Justice Kennedy); however, I am afraid that the Supreme Court will reason something akin to the Obamacare case and decide that compelling someone to speak or do something against his or her religious convictions is like a tax and therefore "constitutional."