Supreme Court justices debate religion's place in case about a cake

PHOTOGRAPHER: The New York Times

Jack Phillips at work in Longmont, Colo., Aug. 24, 2017.

WASHINGTON — The Supreme Court entered the latest battleground in the culture wars on Tuesday, hearing arguments in a hard-fought clash between gay rights and claims of religious freedom that was a sort of sequel to the court’s 2015 decision establishing a constitutional right to same-sex marriage.

The new case involves the refusal of a Colorado baker, Jack Phillips, to make a wedding cake for a gay couple, and it had some justices worried that a ruling in his favor would undermine the 2015 decision’s promise of equality. But other justices said that a tolerant society must leave room for good-faith dissent based on religious principles.

Justice Anthony M. Kennedy, who almost certainly holds the crucial vote, said both things.

He asked whether a baker could put a sign in his window saying, “We do not bake cakes for gay weddings.” A lawyer for the Trump administration, which supports Phillips, said yes, so long as the cakes were custom made.

Kennedy looked troubled. “You would not think that an affront to the gay community?” he asked.

Later, though, Kennedy said that a state civil rights commission that had ruled against the baker had been “neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

The case arose from a brief encounter in 2012, when David Mullins and Charlie Craig visited Phillips’ bakery, Masterpiece Cakeshop, in Lakewood, Colorado. The couple were going to be married in Massachusetts, and they were looking for a wedding cake for a reception in Colorado.

Phillips turned them down, saying he would not use his talents to convey a message of support for same-sex marriage as that would clash with his religious faith. The couple say they were humiliated by Phillips’ refusal to serve them, and they filed a complaint with Colorado’s civil rights commission.

Kristen K. Waggoner, a lawyer for Phillips, said the state should not be able to force him to endorse same-sex marriage in violation of his religious principles. But she took a different position about whether a baker could refuse to create a cake for an interracial marriage.

Solicitor General Noel J. Francisco, the Trump administration lawyer, also said that it would be harder to justify discrimination against interracial couples than gay ones. “Race is particularly unique,” Francisco said.

That distinction did not seem to sit well with some justices. And David D. Cole, a lawyer for the couple, said it would relegate gay and lesbian couples to “second-class status.”

But Chief Justice John G. Roberts Jr. said the court’s 2015 decision had anticipated good-faith disagreements over gay unions.

“It went out of its way to talk about the decent and honorable people who may have opposing views,” Roberts said, referring to Kennedy’s majority opinion. (The chief justice had dissented.)

The remark was a sign of Kennedy’s central role in the new case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111. He is at once the court’s most prominent defender of gay rights and its most committed supporter of free speech.

In his majority opinion in the 2015 same-sex marriage decision, Obergefell v. Hodges, he indeed seemed to anticipate clashes like the one from Colorado, calling for “an open and searching debate” between those who opposed same-sex marriage on religious grounds and those who considered such unions “proper or indeed essential.”

At Tuesday’s argument, he said a broad ruling for Phillips could undermine the decision by allowing all sorts of artists, artisans and professionals to refuse to provide goods and services for same-sex weddings.

“The problem for you is that so many of these examples — and a photographer can be included — do involve speech,” Kennedy told Francisco. “It means that there’s basically an ability to boycott gay marriages.”

But Kennedy also indicated that a member of the state’s civil rights commission may have been biased against Phillips. The commissioner had said that using religious freedom to justify discrimination was “despicable.”

Frederick R. Yarger, a lawyer for the commission, said he disavowed the commissioner’s comment, but Kennedy did not appear satisfied.

“Tolerance is essential in a free society,” Kennedy said. “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.”

The practical implications of Kennedy’s concerns were unclear. They left open the possibility, for instance, that the Supreme Court could return the case to the commission for a rehearing before an unbiased panel. That prospect seemed to intrigue Roberts.

Kennedy also seemed troubled by a part of the commission’s ruling that required Phillips to retrain his employees, who included family members, and to tell them that a state anti-discrimination law overrode their religious beliefs. “He has to speak about that to his family,” Kennedy said.

Justice Ruth Bader Ginsburg said the requirement was routine. “All he has to instruct them” she said, “is this is what the law of Colorado requires.”

Tuesday’s argument, which lasted almost 90 minutes instead of the usual hour, appeared to divide the justices along the usual ideological lines.

The more liberal justices questioned whether all sorts of people — tailors, hair stylists, makeup artists, chefs, architects — could refuse to supply goods and services for same-sex weddings. Conservative justices considered whether artists can be required to convey messages with which they profoundly disagree.

Waggoner said her client was an artist who creates “a temporary sculpture” when he makes a wedding cake. On the other hand, she said, “the tailor is not engaged in speech, nor is the chef engaged in speech.”

Kagan appeared incredulous. “Whoa,” she said. “The baker is engaged in speech, but the chef is not engaged in speech?”

Justice Sonia Sotomayor also seemed unpersuaded. “When have we ever given protection to a food?” she asked.

Justice Stephen G. Breyer said that there was no way to rule for Phillips without inflicting grave damage on principles of equality. “The reason we’re asking these questions,” he said, “is because obviously we want some kind of distinction that will not undermine every civil rights law.”

Justice Samuel A. Alito Jr. pointed out that when Phillips turned down the couple, same-sex marriage was not yet legal in Colorado. “So 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.

“And yet when he goes to this bake shop and he says I want a wedding cake, and the baker says, ‘No, I won’t do it,’ in part because same-sex marriage was not allowed in Colorado at the time, he’s created a grave wrong,” Alito said. “How does that all that fit together?”

Phillips has said that he does not discriminate against gay people and will sell them anything off his store’s shelves. That includes wedding cakes, said Waggoner, his lawyer. “In the context of a pre-made cake,” she said, “that is not compelled speech.”

That position puzzled Kennedy. “Didn’t he express himself when he made it?” Kennedy asked.

Toward the end of the argument, Kennedy appeared to reject an argument from Cole, the couple’s lawyer, that Phillips had discriminated against the couple based on their identity as gay men.

Instead, Kennedy seemed to embrace a distinction pressed by Phillips’ lawyers — that Phillips has nothing against gay people but objected to same-sex marriage because of his religious beliefs.

“It’s not their identity,” Kennedy told Cole. “It’s what they’re doing.”

“I think your identity thing is just too facile,” Kennedy said.