It’s been less than three years since the U.S. Supreme Court legalized same-sex marriage across the land, in a stirring, spotlight-grabbing decision handed down by Justice Anthony Kennedy. And yet, during Tuesday’s oral arguments for Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case in which Colorado baker Jack Phillips refused to create a wedding cake for a same-sex couple, Kennedy’s line of questioning seemed to imply that it was the baker, not the couple, who had been discriminated against.

Speaking to the lawyer representing Colorado, Kennedy, who is expected to cast the crucial swing vote in the case, homed in on an offhand remark made by one of the state’s seven commissioners on civil rights at a July 2014 hearing:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

This quote is likely familiar to anyone supporting Jack Phillips in the case. Over the past several months, conservative Christian media outlets and advocacy groups have seized on it as evidence that the state was biased when it said he violated Colorado anti-discrimination laws.



In a September e-mail blast, Family Research Council executive vice president William “Jerry” Boykin urged the FRC’s supporters to stand with Phillips against the commissioner who “compared Jack standing up for his Christian faith to the actions of Nazis in the Holocaust!”

Earlier that month, the Christian Post ran a video segment showing Phillips walking through an American military cemetery and explaining that he could not possibly have discriminated against the couple in his bake shop, because his father was a soldier in World War II who landed at Normandy and later liberated a Nazi concentration camp.