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Justice Anthony Kennedy wrestles with wedding cake case at Supreme Court

By The Associated Press

This article was originally published December 5, 2017 at 9:27 a.m. Updated December 5, 2017 at 12:58 p.m.

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People sleep outside of the Supreme Court in order to save places in line for Dec. 5 arguments in 'Masterpiece Cakeshop v. Colorado Civil Rights Commission,' Monday, Dec. 4, 2017, outside of the Supreme Court in Washington. (AP Photo/Jacquelyn Martin)


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WASHINGTON — Supreme Court Justice Anthony Kennedy voiced competing concerns Tuesday about respecting the religious beliefs of a Colorado baker who wouldn't make a wedding cake for a same-sex couple, and the gay couple's dignity.

Kennedy, the author of all the court's major gay-rights decisions, worried early in an argument at the high court that a ruling in favor of baker Jack Phillips might allow shop owners to put up signs saying "We do not bake cakes for gay weddings."

But later, Kennedy said the Colorado Civil Rights Commission seemed "neither tolerant nor respectful of Mr. Phillips' religious beliefs" when it found his refusal to bake a cake for the gay couple violated the state's anti-discrimination law.

Phillips and the couple, Charlie Craig and David Mullins, were all in the courtroom Tuesday to listen to an argument that otherwise seemed to put the conservative justices squarely with Phillips and the liberals on the couple's side.

The case pits Phillips' First Amendment claims of artistic freedom against the anti-discrimination arguments of the Colorado commission, and the two men Phillips turned away in 2012.

The argument was the first involving gay rights since the Supreme Court ruled in 2015 that states could not prevent same-sex couples from marrying.

The Trump administration is supporting Phillips in his argument that he can't be forced to create a cake that violates his religious beliefs. It appears to be the first time the federal government has asked the justices to carve out an exception from an anti-discrimination law.

Protesters on both sides filled the sidewalk in front of the court, shortly before the start of the argument.

"We got Jack's back," Phillips' supporters said. Backers of Craig and Mullins countered: "Love wins."

Inside the packed courtroom, the liberal justices peppered Kristen Waggoner, Phillips' lawyer, and Solicitor General Noel Francisco, with questions about how to draw a line to accommodate Phillips without eviscerating laws that require businesses that are open to the public to serve all customers.

The case's outcome could affect photographers and florists who have voiced objections similar to those of Phillips.

Justices Ruth Bader Ginsburg and Elena Kagan ticked off other categories of people who are involved in weddings to ask if they too might be able to refuse a same-sex couple. A graphic artist who designs menus and invitations? A jeweler? A hair stylist? A makeup artist?

Waggoner said the person who makes menus and invitations might be in the same position as Phillips but not the others because what they do is "not speech."

Kagan replied: "Some people might say that about cakes, you know?"

More generally, Justice Stephen Breyer in an exchange with Francisco said his concern is the court would have "no way of confining" a decision in favor of Phillips.

Kennedy's comments in the first half of the 75-minute argument seemed firmly in line with the concerns that he expressed in his opinion in the 2015 gay marriage case and other gay-rights decisions he has written over more than 20 years. Kennedy expressed his doubts when Francisco tried to describe a narrow range of situations in which Phillips and similarly situated business owners might have a right to refuse service.

"The problem for you is so many examples do involve speech. It basically means there is an ability to boycott," Kennedy said.

When Frederick Yarger, the Colorado solicitor general and the American Civil Liberties Union's David Cole stood up to defend the commission's ruling against Phillips, the conservative justices pounced.

Because same-sex marriage was not yet legal in Colorado in 2012, Justice Samuel Alito noted that Craig and Mullins could not have obtained a marriage license where they lived or gotten a local official to marry them. Yet Phillips supposedly "committed a grave wrong" when he refused to make them a cake, Alito said. That struck him as unfair, he said.

Chief Justice John Roberts pressed both Cole and Yarger on whether a Catholic legal services agency that provides help for free would have to take up a case involving a same-sex couple, despite the religious opposition to same-sex marriage. Yes, Cole said, "if they've provided the same services to couples who are straight."

Colorado native Neil Gorsuch, taking part in the most important gay rights case since he joined the Supreme Court in April, asked Cole whether a baker who made a cake shaped like a red cross to celebrate relief efforts also would have to make the same cake for the Ku Klux Klan.

Cole said no, because Colorado's anti-discrimination law refers to race, sex and sexual orientation, but does not protect KKK members.

Kennedy's questions in this portion of the argument seemed to reflect his strong First Amendment views in favor of free speech and religion that he has developed in nearly 30 years on the court.

Kennedy described comments made by one of the seven Colorado commissioners in the case as hostile to religion. "Did the commission ever disavow or disapprove" of those remarks, he asked. Not before today, Yarger said, disavowing them.

The exchange raised another possibility: that the court could return the case to the commission for reconsideration because its first decision was tainted by religious bias.

Colorado is among only 21 states with statewide laws barring discrimination against gays and lesbians in public accommodations.

The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, 16-111, will be decided by late June.

Read Wednesday's Arkansas Democrat-Gazette for full details.

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billg3112091102 says... December 5, 2017 at 10:46 a.m.

I think that a person who bakes cakes should not refuse to bake for anyone. I do believe that they have a right to refuse to put decorations and wording on them if the phrasing violates their religious beliefs. They can donate the iceing to them to decorate any way they choose.

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23cal says... December 5, 2017 at 12:09 p.m.

If "religious belief" is a basis to violate laws against discrimination, then anyone can refuse to serve anyone: black people, white people, Christians, Muslims, interracial couples, Irish, whatever. I understand the purpose is so that Christian extremists can discriminate against homosexuals, by once that door is open, there is no conceivable legal reason for it to stop there. Laws prohibiting discriminating against other demographics have been upheld repeatedly.
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Here’s what really happened. The couple went into the bakery. They were not there long before the baker realized they were a gay couple. At that point, the baker refused to serve them. The refusal was not because of what they wanted on their cake—they never even discussed the design—but only because they were gay.
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For all the baker knew, the couple wanted a plain, three-tiered white cake or a cake with the word “Congratulations.” There is nothing inherently different about a gay wedding cake. Gay wedding cakes more often than not look exactly like heterosexual wedding cakes. The baker did not turn them away because they wanted him to say, “I love the gays,” he turned them away because they were gay. That’s it. He didn’t have any idea what they wanted their cake to look like. He discriminated against them because they were gay.
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The right to believe and the right to act are distinct. The First Amendment’s protection of religion “has always been understood as the right to unfettered thought — freedom to believe whatever religion we choose, or none at all, without government interference of any kind. But the right to believe as we choose has never encompassed a right to act as we choose. Never has a citizen’s right to the free exercise of religion under the First Amendment — let alone a corporation’s — been understood to include the ability to engage in conduct that infringes on the rights of others. Your "religious belief" in human sacrifice doesn't empower you to violate laws against murder, for instance. The central question is not whether the government can regulate religiously motivated action, but where do we draw the line when it comes to religiously motivated actions? Belief is absolute: believe whatever you want. Action is not.
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Some people don’t think the government should be able to tell people who to serve. But this argument has absolutely nothing to do with the gay wedding cake case. Nothing. This argument takes issue with the underlying statute, the Colorado Anti-Discrimination Act.

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RBear says... December 5, 2017 at 1:02 p.m.

The area of religious freedom is getting out of hand and if this ruling goes against the couples, it sets the nation up for sanctioned discrimination. All a business person has to do is claim a person violates their religious beliefs and has the right to discriminate. This also means Christians can discriminate against Muslims. It puts the nation on a path similar to the Taliban.

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JakeTidmore says... December 5, 2017 at 1:09 p.m.

Religious bigotry is for people with no moral backbone, and for those hypocrites who proclaim love for their fellow men and women but refuse to show that love.

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PopulistMom says... December 5, 2017 at 1:20 p.m.

The Supreme Court is struggling with this because they are old folks. The only young people who want discrimination against gays are the far right "Christians." Can you imagine Christ refusing to provide a service to people because they are gay.

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ArkansasEvocator says... December 5, 2017 at 1:33 p.m.

23cal hit the nail on the head. Well put.

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jmgarde says... December 5, 2017 at 2:36 p.m.

I'm not a lawyer, nor do I play one on tv, so I know my arguments will have holes. I do wonder about how far one can go based on religious beliefs. Say I provide a service which is considered speech -- may I choose NOT to serve individuals who are divorced? Who are obese (glutton and lack of self discipline)? Who have addictions to substances my religion finds offensive? Who work on the Sabbath (whichever day I so designate as my religion's Sabbath)? Who vaccinate their children? Or can I only choose to not serve individuals with sexual orientations I oppose?

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Slak says... December 5, 2017 at 2:55 p.m.

"Can you imagine Christ refusing to provide a service to people because they are gay."
Not as long as they are paying their tithes.

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BobfromMarion says... December 5, 2017 at 3:14 p.m.

There has to be a compromise to allow for free speech and to protect religious beliefs.

Obama Care requires companies with 50 or more employees to provide health insurance. The number of employees in a bakery could be one legal consideration.

Consider Wall Mart. An employee there agrees to carry out certain obligations. True the Walton family owns 51 % of Wall Mart. But 49 % of Wall Mart is owned by many different stock holders.

Consider how Wall Mart would function if each employee in the bakery section followed a different set of values. Sally doesn't believe in Valentines day. Bill doesn't like Mothers' and Fathers' Days.and and Sam doesn't do patriotic cakes. Then, there are the Christian, Jewish and Muslim employees who want to only bake and decorate cakes for their own religion.

Then there is the issue of people who have been divorced. Should both the bride and groom swear that they are both virgins to buy a wedding cake?

On the other hand, there may be a devout couple, Jewish, Christian, Muslim, Hindu, or something else that have very strong religious beliefs. Their bakery is located just behind their house.

This couple does all the baking and decorating of the cakes and they take the cakes to the place where the reception will be held.

Should this couple be required to follow the same standard that Wall Mart should follow? The employees at Wall Mart do not set moral standards for customers to purchase items. If you have the money and you are not a minor, you can buy anything in the store except prescription drugs that require a prescription from a physician.

Wall Mart has the legal right to require its employees to check out any products that Wall Mart sells regardless of how the checker feels about a certain item.

Somehow a mom and pop bakery who know 90 % of their customers and is primarily a "word of mouth" business that is on the back part of the owner's yard should be allowed to bake for whoever they wish.

At the same time commercial bakers should not be making moral judgements about what the customers are ordering.

Right or wrong. Good or bad. Same sex marriages are legal. Commercial bakeries should bake the cakes for who ever might order the cakes.

There should be allowances that bakeries can only put PG words on cakes; no vulgar or X rated wordings.

Religious organizations should have the right to set the standards for weddings conducted in their own buildings.

I'm glad I am not a justice on the US Supreme Court. I have no doubt that there is a fine line there that allows the small family bakery to be somewhat selective while not allowing commercial bakeries to have the same privilege.

I'm glad I am not the person that has to determine where that line is.

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Packman says... December 5, 2017 at 3:17 p.m.

Justice Kennedy seems to reflect the constant and continuing struggle with balancing individual "rights" according to the Constitution.
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I'm tending to side with the gbltqiaWTF side on this particular issue. Bake the damn cake and decorate it however they want, so long as they aren't demanding obscene photos or phrases (Wait, is that a violation of the gbltquiWTFers 1st Amendment rights?). Then include on the receipt a little prayer asking God to forgive their sins. The gays get their cake and the Christians get their salvation. But bake the damn cake. Donate the profits to AIDS and rectal cancer research or whatever if you feel it's some sort of tainted money. But bake the damn cake.

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