Supreme Court deeply divided over gay wedding cake

Richard Wolf | USA TODAY

Show Caption Hide Caption This monumental Supreme Court case comes down to cake When Charlie Craig and David Mullins walked into Jack Phillips' bakery, they were looking for a wedding cake. Five years later, all three are embroiled in a watershed Supreme Court case that will decide the limits of free speech.

WASHINGTON — The Supreme Court appeared divided down the middle Tuesday over a Colorado baker's refusal to design a wedding cake for a same-sex couple, the latest test in the continuing legal battle between gay rights and religious expression.

In one of the most animated oral arguments the high court has held, justices on both sides peppered four lawyers with questions to illustrate how their decision might affect other merchants, such as chefs and florists, and other minority groups, such as Catholics and African Americans.

While the court's liberal justices said the "cake artist" likely cannot refuse to serve gay couples, and conservative justices said his religious and free speech rights should be respected, Justice Anthony Kennedy once again was the man in the middle.

Kennedy suggested that Jack Phillips' refusal to bake cakes for same-sex weddings might mean he could post a sign that says, "We do not bake cakes for gay weddings." That, he said, could be seen as "an affront to the gay community."

But Kennedy also accused Colorado officials of exhibiting a "hostility to religion."

"Tolerance is essential in a free society," Kennedy said. "It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs."

The five-year-old legal battle between Phillips' confections and the affections of Charlie Craig and David Mullins tests the Constitution's guarantees of free speech and religion against state laws prohibiting discrimination.

Phillips, 61, owner of Masterpiece Cakeshop, is fighting for the rights of "creative artists" to choose what they will sell. Craig, 37, and Mullins, 33, are fighting for the rights of LGBT customers to choose what they will buy.

All three sat in the third row of the court's public section for the roughly 85-minute oral argument inside the packed courtroom. Some of the spectators had waited in line outside the court since late last week.

The justices spent a large part of the time worrying about where the lines would be drawn if Phillips is allowed to sidestep same-sex weddings.

"So, the jeweler?" Justice Elena Kagan asked. "Hair stylist? ... The makeup artist?"

Justice Stephen Breyer fretted about a ruling that could "undermine every civil rights law from the year 2."

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But the more conservative justices pushed back with examples of what could happen if the court rules Phillips must serve same-sex weddings.

Chief Justice John Roberts said Catholic Legal Services could be forced to provide free representation to a same-sex couple in a marital dispute. Justice Samuel Alito said a baker could be forced to design a cake celebrating Kristallnacht, the 1938 European wave of violence against Jews.

Thus far, Craig and Mullins have won at the Colorado Civil Rights Commission and the state Court of Appeals, thanks to the state's inclusion of sexual orientation in its anti-discrimination law. Twenty other states have similar laws.

But the Supreme Court, bolstered in April by the addition of stalwart conservative and fellow Coloradan Neil Gorsuch, could be a different story.

Several of the court's conservatives, including Kennedy, criticized the remarks of a civil rights commissioner who had said using religion to discriminate was "despicable." That signaled a potential compromise in the case -- sending it back to Colorado courts to decide whether Phillips was treated unfairly.

The high court has weighed in twice on the subject of same-sex marriage. In 2013, it ruled that the federal government must recognize gay and lesbian marriages in the 12 states that had legalized them. In 2015, it extended same-sex marriage nationwide.

But even as he authored the court's landmark decision, Kennedy held out an olive branch to religious conservatives.

"It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned," Kennedy wrote in 2015.

Only three issues in recent years come close to engendering as much emotion at the court as the continuing battle over same-sex marriage: Abortion, affirmative action and Obamacare.

Over the past three months, the high court has been flooded with nearly 100 "friend of the court" briefs, equally divided between the two sides. The briefs raised difficult arguments about free speech and religious liberty, equal rights and anti-discrimination laws.

All those issues were raised in court by lawyers representing the baker and the Trump administration on one side, and the gay couple and Colorado on the other. A decision is not expected until the spring.