U.S. Supreme Court

Swing justice Kennedy lends support to both sides in case of gay couple denied a wedding cake

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Justice Anthony M. Kennedy.

Justice Anthony M. Kennedy made comments supporting both sides during oral arguments on Tuesday in the case of a gay couple denied a wedding cake by a Christian baker with religious objections.

Kennedy is considered the swing vote in the case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, according to coverage by the New York Times, the Washington Post, the Los Angeles Times, Think Progress and the Washington Blade.

At one point, Kennedy asked whether Masterpiece Cakeshop owner Jack Phillips could post a sign saying, “We don’t bake cakes for gay weddings.” Solicitor General Noel Francisco answered that it would be permissible as long as the cakes were custom-made. Kennedy “looked troubled,” according to the New York Times account, and said that position was an affront to the dignity of gay couples.

At another point, Kennedy said Colorado’s Civil Rights Commission, in ruling against Phillips, had “neither been tolerant nor respectful” of the baker’s religious beliefs. Phillips was accused of violating Colorado’s public accommodations law when he refused to make the wedding cake for Charlie Craig and David Mullins.

According to Think Progress, Kennedy “seemed to cast about for a way to decide this case that could have minimal implications for future cases.”

Phillips contends that forcing him to make a custom cake violates his sincerely held religious beliefs, violating his rights of free exercise and free speech under the First Amendment. The free speech claim is being emphasized because a ruling for Phillips on the free exercise claim would require overruling a prior Supreme Court decision against Native Americans who claimed a religious right to consume peyote.

Arguing for the Trump administration, Francisco said Colorado’s public accommodations law should not apply in narrow circumstances when a business owner refuses to provide a “predominantly expressive” service at a premium price.

The Post said the court appeared “closely divided” in the case, while the Los Angeles Times reported that the Supreme Court “gave a mostly skeptical hearing” to the baker’s claim. The Blade saw “no clear indication” of how the justices would rule.

According to the Blade, reporters in the press room speculated the Supreme Court would remand the case to the Colorado Civil Rights Commission with instructions to be more tolerant of Phillips’ beliefs.

The Post also raises the possibility of a remand in its article, pointing to comments by Kennedy and some conservative justices that suggested the proceedings against Phillips could have been tainted by bias.

Related articles:

ABAJournal.com: “Chemerinsky: Is there a constitutional right for a business to not serve customers?””

ABAJournal.com: “ABA urges SCOTUS to rule against baker who refused to make wedding cake for gay couple”

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