— -- The Supreme Court is being asked to decide whether a Colorado baker, Jack Phillips, has a constitutional right to deny service to a same sex couple based on his deeply held religious beliefs.
Liberal and conservative justices seemed to struggle with how to balance accommodations for the baker without violating civil rights laws.
Justice Anthony Kennedy acknowledged that civility and “tolerance” is key to any free society but made clear “tolerance must be mutual” and suggested alternative accommodations were "quite possible” since there were other cake shops in the area.
He also peppered the government’s attorney on how they would do if they were to win the case.
“Can the baker put a sign in the window saying we do not bake cake for gay weddings,” Kennedy asked and continued by suggesting this kind of thing could be “an affront to the gay community.”
Justices Sonia Sotomayor, Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan expressed concern that the bakers’ artistic expression and free speech arguments could have a direct impact on civil rights laws.
Justice Ginsburg wanted to know why Phillips could claim free expression if no message is being communicated.
"If he makes custom-made cakes for others, he must make it for this pair, but he doesn't have to write anything for anybody. He doesn't have to write a message that he disagrees with,” she said
Justice Sotomayor told the government’s lawyer, Noel Francisco, there is a reason public accommodation laws include behavior.
“We can't compel you to like these people, we can't compel you to bring them into your home, 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. And that includes not selling products that you sell to everyone else to people simply because of their either race, religion, national origin, gender, and in this case sexual orientation. So we can't legislate civility and rudeness, but we can and have permitted it as a compelling state interest legislating behavior.”
Supreme Court expert Kate Shaw answers our questions about the case and what it could mean for the future.
What is the case about?
This case involves a Colorado baker's denial of service to a same-sex couple. The case began when David Mullins and Charlie Craig, planning their wedding, made an appointment to discuss a custom cake with Jack Phillips, the proprietor of Masterpiece Cakeshop. When he learned that Mullins and Craig were a couple, Phillips indicated that he did not design cakes for gay weddings but that he would be willing to sell them other baked goods. Craig and Mullins left the bakery.
Colorado has a state law that prohibits discrimination on the basis of sexual orientation, and the couple filed a complaint with the Colorado Civil Rights Division, which agreed that Phillips' conduct violated state law. The Colorado state courts agreed.
Phillips has appealed all the way to the Supreme Court, arguing the Colorado law violates the Constitution by requiring him to violate his religious beliefs and by compelling him to bake a particular cake — which he describes as a form of artistic expression — for an event not of his choosing.
Are there any other players in this case?
Well, one very important player is the Trump Justice Department, which has filed a brief supporting Phillips. There are close to 100 additional amicus briefs in the case — a strong indication of the intense public interest in the case. People have been camping outside the Supreme Court since Friday in the hopes of getting to see the arguments in person.
What are the possible results in this case?
First, Phillips could prevail in his argument that a state law requiring him to bake cakes for couples like Mullins and Craig would constitute compelled speech, in violation of the First Amendment, or would violate his religious exercise rights under the First Amendment's free exercise clause.
Or Mullins and Craig, who are joined by the Colorado Civil Rights Commission, could persuade the justices that neither the speech nor the religion guarantees of the First Amendment permit Phillips to discriminate on the basis of sexual orientation in his commercial activity.
How are the justices expected to rule?
This is an extremely difficult case to predict.
It will almost certainly come down to Justice Anthony Kennedy, and his previous opinions point in a few different directions. He's the author of the Supreme Court's most important gay rights decisions — most notably, the court's recent decision in Obergefell v. Hodges, which opened up marriage to same-sex couples.
But he also has an extremely expansive conception of the First Amendment. Those two commitments are in genuine conflict, and it's anyone's guess which one will have to yield.
We'll likely have a better sense after oral arguments, but until the opinion is out, which I'd guess won't be until June 2018, it's anyone's guess.