Except for justices Kagan and Ginzburg, an uneasiness about the case was evident to a greater and lesser degree among the other 7 Supreme Court justices.

As the arguments in the Supreme Court developed Tuesday, U.S. Solicitor General Noel Francisco and the attorney for Masterpiece Cakeshop owner Jack Phillips concentrated on the free speech issue. The U.S. Department of Justice’s brief in support of Phillips argued that Phillips’ position should be vindicated under free speech law and, for that reason, a ruling on free exercise was not necessary.

Justices Elena Kagan and Sonia Sotomayor peppered Phillips’ attorney about how many “artists” are involved in weddings. Are hair stylists, cosmeticians, jewelers, and tailors all expressive artists? The attorney replied that only speech and “something that is being communicated” should be protected by the Free Speech Clause, to which Justice Stephen Breyer answered that all of the mentioned providers of wedding services think they are “communicating something.”

Francisco remarked that the law should allow some “breathing space” for “a small group of individuals” and not compel them “to engage in speech” at events “to which they are deeply opposed.” Otherwise, if the state of Colorado was going to be absolutist in its laws prohibiting discrimination in public accommodations, then there was no way to avoid forcing, for example, “an African-American sculptor to sculpt a cross” for an event of the Klu Klux Klan. Justice Ruth Bader Ginsburg wondered how it was possible to keep any permitted breathing space narrow.

As for Points on Free Exercise of Religion

Arguing the free exercise issue was left to the attorney representing the state of Colorado and the attorney for the gay couple. The two attorneys were asked again and again to consider and respond to comparisons and hypotheticals. Justice Samuel Alito asked why the Colorado Civil Rights Commission had allowed other bakers to reject cake orders that criticized homosexuality but had disallowed Phillips’ refusal based on his religion.

Chief Justice John Roberts asked whether a Catholic organization that provides legal services to the poor could be forced to sue Masterpiece Cakeshop if so asked, and Colorado’s attorney said that if an organization is open to all comers and “operating like a retail store,” it could be forced to accept such clients. Alito said he had learned that some businesses write both vows and speeches for weddings. Could such a business be forced to provide such written expressions for a same-sex marriage? The couple’s attorney avoided answering the question.

The attorney for Colorado answered in the negative to a question concerning whether Masterpiece could affiliate with and refer customers to another cakeshop that provided cakes for same-sex weddings. Justice Neil Gorsuch wondered whether the “comprehensive staff training” the commission imposed on Phillips requires Phillips to “speak in ways that maybe offend his religion and certainly compel him to speak.” The attorneys opposing Phillips and Justice Ginzburg answered that Phillips would only have to speak about obeying the law.

Forcing People to Say Things They Don’t Believe

Along these same lines, Francisco had already argued that the Colorado law as currently interpreted by its Civil Rights Commission requires “a gay opera singer to perform at the Westboro Baptist Church just because that opera singer would be willing to perform at the National Cathedral.”

At one point, Francisco made the general statement that “none of this Court’s cases has ever involved requiring somebody to create speech and contribute to an expressive event to which they are deeply involved.” However, Sotomayor may have offered her own summary when she stated that “we’ve always said in our public accommodations law we can’t change your private beliefs . . . but if you want to be a part of our community, of our civic community, there’s certain behavior, conduct . . . you can’t engage in.”

Except for justices Kagan and Ginzburg, an uneasiness about the case was evident to a greater and lesser degree among the other seven justices. Along the lines of Francisco’s wish that some “breathing space” could be found for a “small group of individuals,” Breyer said he was looking for “some kind of compromise for people of sincere beliefs” that would nonetheless “minimize the harm” done to the Colorado state law. Colorado, he added, had not made “much effort” to try to accomplish that.