People gather outside the Supreme Court before Masterpiece Cakeshop vs. Colorado Civil Rights Commission is heard Tuesday. | Brendan Smialowski/AFP/Getty Images Supreme Court appears split in fight over cake for gay wedding Colorado bakeshop owner claims anti-discrimination law intrudes on his free expression rights.

A Christian baker who refused to make a wedding cake for a same-sex couple found unexpected traction for his position at the Supreme Court Tuesday, as the justices wrestled with a high-profile clash between religious beliefs and anti-discrimination laws.

The high court's champion of gay rights, Justice Anthony Kennedy, seemed troubled by Colorado officials' treatment of Masterpiece Cakeshop owner Jack Phillips after he turned down Charlie Craig and David Mullins' request for a custom cake to celebrate their wedding in 2012.


"Tolerance is essential in a free society. Tolerance is most meaningful when it's mutual," Kennedy said during oral arguments that were scheduled for an hour but stretched to nearly an hour and a half. "It seems to me the state in its position has been neither tolerant nor respectful of Mr. Phillips' religious beliefs."

Kennedy dismissed as "too facile" a lawyer's arguments that Phillips had discriminated against the gay couple based on their identity. And the Reagan appointee and frequent swing justice suggested Colorado went too far in ordering Phillips to implement remedial training for his workers.

"He has to teach that to his family. He has to speak about that to his family," Kennedy said.

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However, Kennedy also expressed concern for the plight of gay couples who might be refused services, and he asked a Trump administration lawyer if the federal government "would feel vindicated" if a widespread movement developed to deny cakes to same-sex couples.

“If you prevail, could the baker put a sign in his window, we do not bake cakes for gay weddings?” Kennedy asked Solicitor General Noel Francisco. “And you would not think that an affront to the gay community?”

“I would not minimize the dignity interests to Mr. Craig and Mr. Mullins one bit, but there are dignity interests on the other side here too,” replied Francisco, who argued in favor of the baker.

Beyond Kennedy, the court seemed to divide along the usual ideological lines, with liberals speculating about the damage a ruling for the baker could do to laws against racial, gender and religious discrimination, while conservatives expressed worries about intruding on deeply held religious beliefs.

Liberal justices warned that allowing a cake-maker to avoid anti-discrimination laws would lead to photographers, jewelers, tailors and caterers seeking to level the same claims.

Phillips' attorney, Kristen Waggoner of the Alliance Defense Fund, called Phillips' work a "temporary sculpture" and said concerns about other vendors trying to avoid serving gay couples were exaggerated.

"The tailor is not engaged in speech, nor is the chef," she said.

"Woah, the baker is engaged in speech, but the chef is not engaged in speech?" Justice Elena Kagan replied incredulously.

Even someone doing makeup might decline to take part in a wedding on grounds they're expressing their creativity, Kagan noted.

“It’s called an artist. It's the makeup artist,” she noted, to laughter from many in the courtroom. "A makeup artist, I think, might feel exactly as your client does, that they're doing something that's of great aesthetic importance to the wedding."

Justice Sonia Sotomayor noted that a major sandwich chain suggests its employees are deeply creative. "There are sandwich artists now," she observed.

Noting that “the primary purpose of food is to be eaten,” Sotomayor proposed a kind of functional test, where objects to be used or consumed wouldn’t be considered expressive enough to warrant First Amendment protection.

But Justice Samuel Alito noted that buildings are intended to be used and lived in, although “architectural design” surely has a large creative element to it.

Alito seemed to think Waggoner would embrace that idea, but she quickly rejected it, perhaps out of concern that allowing protection for architects could be seen as countenancing housing discrimination.

"Generally that would not be protected because buildings are functionable, not communicative," Waggoner declared.

Justice Stephen Breyer took that as an opening.

"So, in other words, Mies or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that really does baffle me, I have to say," Breyer said.

Liberals had a similar moment as Justice Ruth Bader Ginsburg asked the gay couple’s attorney, David Cole of the ACLU, whether Phillips could be compelled to decorate a cake with the phrase “God bless...” and the names of a same-sex couple if he offered a similar cake to a heterosexual couple.

Cole said Phillips would be obliged to do it, if the only difference were the names.

At that point, Kagan jumped in. “Do we have to answer that question, Mr. Cole?” she asked. She seemed concerned that such a direct command to the baker to write something he disagrees with would be seen by a majority of the court as unconstitutionally compelling speech.

Cole noted that the gay couple in the present case never asked for a specific message, but was declined service based solely on who they were.

At the conclusion of Tuesday's arguments, it seemed likely that Phillips would receive some relief from the justices, though it was unclear whether it would be the sweeping ruling some social conservatives were seeking to give robust protections to businesses run by religious individuals.

One possibility appeared to be that the court would condemn aspects of how Phillips was treated by the Colorado Civil Rights Commission and send the case back down to lower courts for reconsideration.

Kennedy noted that a member of the commission debating Phillips' case described as "despicable" the fact that freedom of religion is sometimes used to justify discrimination. Justice Neil Gorsuch also expressed concern that another commissioner said that someone whose "personal belief system" is at odds with the law needs to change their beliefs.

While a majority of the court may be troubled by those statements, not all justices appeared to be. Sotomayor said a degree of social coercion flowing from anti-discrimination law isn't a bad thing.

"America's reaction to mixed marriages and to race didn't change on its own," she said. "It changed because we had public accommodation laws that forced people to do things that many claimed were against their expressive rights and against their religious rights."

Phillips says his policies for his bakery arise from sincerely held religious beliefs that also lead him to decline to make Halloween cakes, as well as cakes with anti-American or sex-related themes or cakes containing alcohol.

Activists and lawyers backing the couple say the courts resolved the core issue in the case about half a century ago, turning down claims by white business owners in the South that their religious beliefs entitled them to refuse to serve African-American customers.

While Phillips' case has become a cause celebre for conservative Christian activists nationwide, his lawyers and others taking his side in the dispute, including the Trump administration, have largely focused their arguments on free speech rights. The core claim in the case is that Phillips is essentially being compelled to create expression he does not wish to produce, violating his First Amendment right to free speech.

Charlie Craig (left) and his spouse, Dave Mullins, hold hands outside the Supreme Court as Masterpiece Cakeshop vs. Colorado Civil Rights Commission is heard on Dec. 5. | Brendan Smialowski/Getty Images

The intrusion on his religious freedom has taken a back seat in the legal arguments, perhaps as a strategy aimed at winning over Kennedy, who is seen as the likely swing justice in the case.

Those backing the couple say that the free-speech claim is a warmed-over version of an issue raised back in 1964 by Maurice Bessinger, the owner of a Columbia, South Carolina, barbecue stand called Piggie Park. He defied federal civil rights laws by claiming he had a First Amendment right to his anti-integration beliefs. Courts rejected his contention, with the Supreme Court calling his claims "patently frivolous" in a brief 1968 ruling.

Some who side with the baker in the current case, including the Trump administration, have argued that the government's interest in preventing discrimination based on sexual orientation isn't as strong as it is with race.

Justice Ruth Bader Ginsburg, who was a leading women's rights advocate before taking the bench, asked Noel Francisco how the courts should differentiate between various anti-discrimination protections.

"I think pretty much everything but race would fall in the same category," Francisco said in his first argument to the court since being sworn in several months ago.

Cole disagreed. "To do that would be to consign gay and lesbian people to second class status," he said. The ACLU lawyer said Francisco and the Trump administration were seeking to put race in a separate category because they recognized the "unacceptable consequences" of allowing individual beliefs to override anti-discrimination laws created to protect African Americans.

The wedding cake case is the court’s first significant foray into the issue of gay rights since the landmark 2015 ruling that the Constitution requires states to recognize same-sex marriage.

The dissenters in that case warned that the decision guaranteeing gay-marriage rights would trigger a wave of litigation from religious individuals and organizations resisting efforts to force them to provide services to same-sex couples.

