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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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Comments on: Justice Anthony Kennedy wrestles with wedding cake case at Supreme Court

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BOLTAR says... December 6, 2017 at 8:20 p.m.

Perhaps the Constitution is important, too.

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Packman says... December 6, 2017 at 8:43 p.m.

Hey RBear - Actually that's exactly what you did. You attempted to move from right/wrong as defined by God to those defined by society and I called you out on it. And it sure sounds like you're speaking for Jesus when describing his teachings. Isn't it pretty much the same thing?
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Hey Pop - I agree the teaching's of the Bible aren't a bad thing. And gohogs nailed it. For example, you are such a f'ing hypocrite to say you follow his teachings that include opposing assaults on children while supporting Roe v Wade.

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RBear says... December 7, 2017 at 3:51 a.m.

Pack, quite the contrary. If anything, I'm letting Christ speak for himself through his teachings that have been captured in the canon through the gospels. There is no agenda other than love and tolerance which I think is what you'll find IF you explored the teachings of Christ. That's why Jefferson, a deist, decided to create the Jefferson Bible which contains only the teachings of Christ and nothing else.
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When I hear someone like gohogs try to superimpose their agenda on top of Christ I have to cringe at such action. It's very similar to the church prior to the Reformation when the pope and his underlings distorted the teachings in such a way as to compel the faithful to give up their hard earned money to fill the coffers of the church to build the grand palaces of worship.
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While not so drastic an action, evangelicals today have distorted the teachings of the bible to promote an agenda of intolerance and discrimination. It was much the same as during the civil rights movement. During that time, the pastor of my church broke from the norm and penned an editorial in the Arkansas Gazette decrying segregation. That's a hallmark of the reformed church, to live by the teachings of Christ and promote social justice.
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As I said, it sure seems like any attempt to discriminate against LGBT individuals based on religious freedom sounds a lot like the Woolworth lunch counter. Sure, blacks could have taken their business elsewhere but would that really be in line with the principles of our nation?

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PopulistMom says... December 7, 2017 at 6:28 a.m.

Packman,

I oppose ending healthy pregnancies on moral grounds. Christ did not say anything about the morals of discarding embryos which contain genetic defects so that couples can have healthy children. There also are strong moral arguments to allow the termination of certain pregnancies when the health of the mother is at stake or when the fetus is extremely damaged. Many of these issues are morally complex. Should a 13 year old be made to carry a pregnancy to term? What if she is a victim of incest? I have no problem with laws prohibiting abortions of healthy fetuses after 20 weeks. If you find any comments of Christ on these issues, please make me aware.

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Whippersnapper says... December 7, 2017 at 8:52 a.m.

Bear,
Christ's teaching on sexuality is that it is only acceptable within lifetime monogamous marriage. His teaching on marriage is that from the beginning, God made them male and female and that what God put together man should not separate. Where does homosexual behavior of any sort fit into Christ's specific teachings on sex? Oh yeah, it's not allowed.
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The state of Colorado believes they should be able to force Catholic charities to support the fight for gay rights under this law. They believe that they should be able to force Christian schools to let same sex students in their married student housing. They believe that this only applies to conservative Christians and that others can't be forced to go against their conscience. If you don't believe me, these are all in their argument before the Supreme Court.
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This is not about "equal treatment under the law," this is about grinding conservative (Bible based) Christian views into the dirt.

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PopulistMom says... December 7, 2017 at 9:11 a.m.

Whipper,

Christ never said that. You are extrapolating something he said in response to divorce. He never said anything about gays, premarital sex or masturbation etc. Let's not make ridiculous arguments.

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RBear says... December 7, 2017 at 9:41 a.m.

Thanks PM. Beat me to it. I love it when some of these evangelicals like to superimpose their discriminating views on top of Christ’s teachings, sometimes distorting the text to fit an agenda.

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gohogs17 says... December 7, 2017 at 9:44 a.m.

PM, there are a lot of things Christ didn't actually say. He didn't talk about iPhones, though he knew about them. (Don't challenge that, He is omniscient) He condemned sin, and whether you like it or not, believe it or not, homosexuality IS a sin. All you libs want to do re the Bible is pick out a couple or so verses that show Christ "showing tolerance". He doesn't tolerate sin. BTW, is Christ the Son of God, God incarnate? I'd love to hear you opine on that.

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23cal says... December 7, 2017 at 9:51 a.m.

Whipper:
About "Christ's teaching on sexuality is that it is only acceptable within lifetime monogamous marriage" The most fundamentalist religious states have the worst rates of underage and unmarried pregnancies. Perhaps the homophobic cherry pickers of the Bible need to focus their attention elsewhere. Where is the full court Christian press to deny equality under the law to people who live together? Who divorce? Who are adulterers? Who have pre-marital sex? Where is their demand to take away rights from people like Roy Moore, David Vitter, Donald Trump, et al?
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About "They believe that they should be able to force Christian schools to let same sex students in their married student housing." Are you referring to schools which receive federal funds being forced to abide by the law and treat all married students equally? Why, yes....yes, you are. By the way, any schools using their religious roots to deny student housing to interracial couples get the same treatment. See how that works? If they don't want to follow federal law, all they have to do is give up federal funding.....just like applies to every single university in the country.
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About "The state of Colorado believes they should be able to force Catholic charities to support the fight for gay rights under this law." This is quite simply a lie. Plain and simple. The truth is that the state demands that Catholic Charities which receive federal funds must treat all legally married couples equally for purposes of adoption. I know it is inconceivable to you that Catholic adoption agencies get to receive taxpayer dollars from homosexual taxpayers but aren't allowed to discriminate against those same taxpayers, but there it is. The Catholic Charities aren't being forced to "fight for gay rights", they are being forced to treat gays equally under the law as long as they are getting federal funds. The Catholic Charities can forego the federal funds and do whatever their discriminatory little hearts want to do.
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Popmom is right, also.

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Whippersnapper says... December 7, 2017 at 9:53 a.m.

Pop, Jesus said that marriage was created for a male and a female. Period. You don't want to accept that, so you say "Well, he was talking about heterosexual divorce." Why would He have even said anything about the fact that it was male and female if that wasn't an important aspect?
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You also haven't commented on the fact that Colorado has specifically said this is all about forcing conservative Christians to change their beliefs (the antithesis of the 1st amendment).

( | suggest removal )

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