The Supreme Court heard oral argument today in the Colorado cake maker case. The issue is whether Colorado can coerce a baker, Jack Phillips, into making a custom cake for a gay wedding when he objects to gay marriage on religious grounds.

It quickly became apparent that, to no one’s surprise, Justice Kennedy’s vote will likely decide the case. The questions Kennedy asked created some discomfort for both sides, but more for the gay couple.

Amy Howe of ScotusBlog reports:

With Kennedy seemingly holding the key vote, the couple and their supporters at first seemed to have reason to be optimistic. Discussing the impact that a ruling for the baker could have for gays and lesbians, Kennedy told Solicitor General Noel Francisco, who argued on behalf of the United States in support of Masterpiece Cakeshop, that if the baker were to win, he could put up a sign indicating that he would not bake cakes for same-sex couples. That, Kennedy suggested, would be “an affront to the gay community.” But the tide seemed to shift later in the argument, as Kennedy asked Colorado Solicitor General Frederick Yarger, representing the state, about a statement by a member of the Colorado Civil Rights Commission who noted that religious beliefs had in the past been used to justify other forms of discrimination, like slavery and the Holocaust. It is, the commission member contended, “one of the most despicable pieces of rhetoric that people can use their religion to hurt others.” If we thought that at least this member of the commission had based his decision on hostility to religion, Kennedy asked Yarger, could the judgment against Masterpiece stand?

That wasn’t all:

Kennedy returned to this idea again a few minutes later, telling Yarger that “tolerance is essential in a free society.” But Colorado, Kennedy posited, hasn’t been very tolerant of Phillips’ religious beliefs in this case. And, following up on Gorsuch’s suggestion that the training required of Phillips would amount to compelled speech, Kennedy commented (more than a little derisively) that Phillips would “have to teach that state law supersedes our religious beliefs.”

That last Kennedy comment harks back to what he wrote in the Obergefell case, where he established a constitutional right to marry someone of the same sex:

The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.

David French is fascinated and encouraged by Kennedy’s fixation on “Colorado’s” animus towards religious belief. He writes:

Justice Kennedy labels a common leftist talking point — that freedom of religion is used to justify discrimination — a “despicable piece of rhetoric.” Kennedy then went on to raise the question of whether there was “a significant aspect of hostility to a religion in this case.” Many progressives have been playing the bigotry card since the inception of this case, but Justice Kennedy raises the possibility that the true bigots may have been the government officials who punished Jack Phillips.

Again, that harks back to his opinion in Obergefell.

French is also heartened by this exchange between Kennedy and the lawyer for the gay couple:

JUSTICE KENNEDY: Well, but this whole concept of identity is a slightly — suppose he says: Look, I have nothing against — against gay people. He says but I just don’t think they should have a marriage because that’s contrary to my beliefs. It’s not -­ MR. COLE: Yeah. JUSTICE KENNEDY: It’s not their identity; it’s what they’re doing. MR. COLE: Yeah. JUSTICE KENNEDY: I think it’s — your identity thing is just too facile.

Yeah.

French concludes:

Phillips never, ever, discriminated on the basis of identity. He merely refused to use his talents to support actions and messages he believes to be immoral. Justice Kennedy gets the key distinction in this case. Now let’s hope this thought makes it into the opinion of the Court.

Kennedy is the swing vote. If he wants this thought to make it into the opinion of the Court, it will.