[Editor’s note: This post was updated at 2:49 p.m. to provide expanded analysis of the argument.]

Lines began forming outside the Supreme Court last week for one of the biggest oral arguments of the year, in the case of a Colorado man who says that requiring him to create custom cakes for same-sex weddings would violate his religious beliefs. At the end of over an hour of debate, it became clear that, at least in one respect, the case is just like so many others: It is likely to hinge on the vote of Justice Anthony Kennedy, who initially seemed sympathetic to the same-sex couple but later expressed real concern that Colorado had not been sufficiently tolerant of the baker’s religious freedom.

The dispute before the Supreme Court today dates back to 2012, when Charlie Craig and David Mullins went to Masterpiece Cakeshop, a Denver-area bakery, to order a special cake to celebrate their upcoming marriage. But Jack Phillips, the owner of the bakery, refused to make them a cake. Phillips, who describes himself as a “cake artist,” is also a Christian who closes his business on Sundays and refuses to design custom cakes that conflict with his religious beliefs – for example, cakes that contain alcohol, have Halloween themes or celebrate a divorce or same-sex marriage. The Colorado agencies responsible for enforcing the state’s anti-discrimination laws ruled that Phillips’ refusal to provide the custom cake violated those laws and that he had “no free speech right” to turn down Craig and Mullins’ request. They told Phillips that, if he decided to create cakes for opposite-sex weddings, he would also have to create them for same-sex weddings.

An appeals court in Colorado rejected Phillips’ argument that forcing him to make a cake for a same-sex couple would violate his right to free speech and to practice his religion freely, but his argument found more traction at the Supreme Court today. Although making predictions based on oral argument is always dangerous, it seemed very possible that there are five votes for Phillips among the court’s more conservative justices, even if it is less clear how broadly they will rule.

Chief Justice John Roberts seemed to be squarely in Phillips’ corner. He asked Colorado Solicitor General Frederick Yarger, representing the state, whether Catholic Legal Services, which provides legal services to all different faiths, could refuse to take on a case involving same-sex marriage on the ground that it violated the group’s religious beliefs. Under Colorado law, Roberts suggested, the group would face an unpalatable set of choices: It could either stop providing any legal services at all or it could provide services that include same-sex marriage. And he reminded David Cole, representing Craig and Mullins, that, in its 2015 decision establishing a right to same-sex marriage, the court went “out of its way” to note that “decent and honorable people” may oppose same-sex marriage.

Justice Samuel Alito also seemed to be on board with Phillips’ arguments. He was concerned that, according to the state, another baker could decline to create cakes opposing same-sex marriage, but Phillips could not refuse to make a cake celebrating a same-sex marriage. Later he suggested that it was “very odd” that, in 2012, Craig and Mullins could not have gotten married in Colorado or had their Massachusetts wedding recognized by the state, but Phillips could get in trouble for refusing to make them a cake to celebrate their same-sex marriage.

Justice Neil Gorsuch, who until recently lived in Colorado, seemed to object to part of the state’s order in Phillips’ case, which required him to provide “comprehensive training” to his employees. Why wouldn’t the training be compelled speech, Gorsuch asked, when it would require Phillips to tell his staff that his Christian beliefs are discriminatory?

For their part, the court’s four more liberal justices mostly seemed to side with the couple. Responding to the argument by Kristen Waggoner, who represented Masterpiece and Phillips, that the First Amendment bars the government from forcing people to express messages that violate their religious beliefs, Justice Sonia Sotomayor asked Waggoner dubiously when the Supreme Court has ever “given protection to food?” “Food is there to be eaten,” she said. Moreover, she added, when people look at a wedding cake, they associate it with the couple being married; if that’s the case, how can Phillips say that a cake is a medium for his expression?

Sotomayor was also worried that a ruling for Masterpiece would not only violate the dignity of same-sex couples, but could also cause real hardships. Most military bases, she noted, are in isolated parts of the United States, many of which are predominantly Christian. That means, she said, that there might only be one or two bakers to provide cakes for same-sex weddings – and a couple could be out of luck if all the available bakers cite religious beliefs as a reason to refuse to make a cake. “We can’t legislate civility and rudeness,” she concluded, but we can legislate behavior.

But many of the more liberal justices’ questions seemed to focus on trying to convince their more conservative colleagues that, even if they might be inclined to vote for Masterpiece, it would be next to impossible to write a ruling for the baker that did not, as Justice Stephen Breyer put it, “undermine every civil rights law since year 2.” They peppered Waggoner with questions about what kinds of wedding services would or would not be protected under her rule, and they rarely appeared convinced by her efforts to draw distinctions.

Justice Elena Kagan led the charge, asking Waggoner whether a hairstylist or a make-up artist could cite his religious beliefs as the basis to refuse to provide services for a same-sex wedding. When Waggoner responded that they could not, Kagan pushed back. The make-up artist is an artist, she stressed, and could feel the same way about his craft as Phillips does. Waggoner countered that doing someone’s make-up is not speech, prompting Kagan to retort that “some people might say that about cakes.” And Kagan expressed disbelief that a baker’s craft is expression but a chef’s, according to Waggoner, is not.

Alito joined the fray with what seemed to be a softball question for Waggoner, asking her whether architectural designs would be protected even though people live in the buildings for which they serve as the basis. Waggoner said that they would not be, which seemed to surprise Breyer. So a masterpiece by Michelangelo would not be protected, but a cake without any message on it would be, he asked? “That really does baffle me,” Breyer said.

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?

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.”

Even if there are five votes in favor of Masterpiece, those justices will face a dilemma: How do they draw a line that respects the religious beliefs of people like Phillips without, as Breyer put it, “creating chaos.” As the more liberal justices’ questions for Waggoner illustrate, that is easier said than done.

A decision is expected by summer.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Argument analysis: Conservative majority leaning toward ruling for Colorado baker (UPDATED), SCOTUSblog (Dec. 5, 2017, 12:18 PM), https://www.scotusblog.com/2017/12/argument-analysis-conservative-majority-leaning-toward-ruling-colorado-baker/