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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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Slak says... December 5, 2017 at 3:25 p.m.

"Never buy food from someone you've pissed off."
This maxim is proof the whole thing is about vengeance. Nothing to do with cake.

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23cal says... December 5, 2017 at 6:11 p.m.

Sure, Slak. Just like those Black folks sitting at the diner counter in Greensboro, N.C. back in 1960. That wasn't about food, either.......but only someone like you would claim it was done for "vengeance".

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gohogs17 says... December 5, 2017 at 6:27 p.m.

Popmom: You have NO conception concerning what the Bible says, only your personal "opinions". Jesus would tell "gay" people they were sinning, NOT condone it.

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RBear says... December 6, 2017 at 7:21 a.m.

gohogs, "Jesus would tell..." Really? What basis do you have for that statement? I went through his teachings last night and found ... wait for it ... NOTHING on homosexuality. Point me to Christ's statement that condemns homosexuals gohogs. Once again, you flunk the biblical interpretation test as you always seem to do.

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gohogs17 says... December 6, 2017 at 9:47 a.m.

Oh, biblical scholar, tell me this, I have asked you several times before with no reply. Who is Jesus, both historically and personally, to you? Then I will respond to your question.

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RBear says... December 6, 2017 at 11:50 a.m.

gohogs, the point is that you won't answer the question because it debunks your stupid position. Your idiotic deflections proves how weak it is which is why you won't answer. It shows how chicken you are to truly own up to the issue. Don't attack PM if you can't answer for your statement to start with. Let me ask you. Are you this dumb in church in Batesville?

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gohogs17 says... December 6, 2017 at 12:39 p.m.

Rbear, of course you want to cherry-pick the Bible because otherwise it would condemn your homosexual lifestyle. Since Jesus didn't mention "homosexuality" verbatim you take that as your being okay to live that way. I don't care if you're queer, that's your business. But don't say the Bible doesn't address it because it does and you know it. By denying it you are saying that God is a liar.

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RBear says... December 6, 2017 at 1:26 p.m.

Gohogs, this is not cherry picking. What you are attempting to do is cherry pick and outside of context. As PM has pointed out several times, how some evangelicals interpret the Bible is almost shameful by missing context, ignoring the evolution of canon development, and overlooking the societal norms of certain times.
...
I very clearly asked if Christ ever addressed homosexuality which He didn’t so there is no way you can draw a conclusion He was opposed to it. Doing so would attempt to overlay your opinion on top of Christ’s teachings.
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So once again, what proof do you have that Christ opposed homosexuality?

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Packman says... December 6, 2017 at 2:32 p.m.

Hey RBear - Does the word "pedophile" appear anywhere in the Bible?

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RBear says... December 6, 2017 at 2:48 p.m.

No Pack, it doesn’t but society has deemed it a crime and I agree. Society deemed homosexuality was not a crime with Lawrence v. Texas. So what’s your point? You get so confused sometimes in arguments when you attempt to make a point.

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