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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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Whippersnapper says... December 7, 2017 at 1:53 p.m.

3rd grade reader,
A Christian (or anybody) can tell that when two men come in or two women come in and say they are getting married to each other, their marriage violates God's laws regarding homosexuality and marriage. He or she can not tell when a man and woman come in whether the man or woman they are marrying is their first spouse or if they are divorced or adulterous. This is apparently too difficult a topic for you t understand, but if you know something is sinful and support it, you are wrong (as a Christian). That is clear in the Scriptures.
.
23cal,
2 of the 7 commissioners in Colorado said they were opposed to the Christian worldview. They threw out numerous complaints from people wanting cakes baked expressing negative views of gay marriage, but insisted that this cake (which itself was an endorsement of gay marriage) must be baked.
.
You don't want to admit it, but the Colorado AG admitted that if they were operating as a retail storefront open to the general public (which many charities do - regardless of what they charge) then they must provide those services.
.
You try to make it about "federal" funding, but this is about STATE law. The STATE can't put conditions on receipt of FEDERAL funding.

( | suggest removal )

Packman says... December 7, 2017 at 1:55 p.m.

Hey Pop - I assume nothing? Do you support Roe v Wade? It's a simple question. In the past you've said "yes". Again, it's a simple question.

( | suggest removal )

gohogs17 says... December 7, 2017 at 2:11 p.m.

Rbear or Stasibear, whatever you call yourself, you really are STUPID, aren't you? You think Jesus doesn't know everything? Girl, you are beyond help, believe me! He knows your thoughts, that's why he said to lust after a woman was the same as committing adultery with her. Dang, I've never seen anyone who takes fact and twists it the way you do.

( | suggest removal )

PopulistMom says... December 7, 2017 at 2:14 p.m.

Pack man,

Actually, it is quite complicated. I've not read the case since law school, but I remember Justice Blackman balancing the rights to privacy vs. the fetuses' right to life vs. governmental interests. While I personally may think certain actions are immoral or I might make different choices, I understand not all immoral activity should be legislated. I disagree with some of the court interpretations of Roe v Wade--both liberal and conservative. I think that the state can try to encourage adoption over abortion. In the first trimester, I agree the state should allow and I would not require parental consent. After that, I would allow for medical reasons etc. After 20 weeks, I pretty much would ban except in a very few medical situations. I've forgotten the Roe v Wade set of facts, but it pretty much was moot and the baby was born.

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RBear says... December 7, 2017 at 2:20 p.m.

Whipper as PM has pointed out several times and you keep ignoring, Christ spoke specifically of divorce in that passage but as 3WS has also pointed out that apparently doesn’t factor into the Christian exclusion. Two divorced people walk into a bakery and want a wedding cake. Based on the passage you so often cite, the Christian baker should deny them service because they violate God’s law according to you.
...
Help us all out on this one. Which are the good God laws and which are the bad one?

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23cal says... December 7, 2017 at 7:47 p.m.

Whipper: About "2 of the 7 commissioners in Colorado said they were opposed to the Christian worldview." You misrepresent what they said.
*
Commissioner Hess says freedom of religion used
to justify discrimination is a despicable piece
of rhetoric. I understand you want to twist that into being opposed to the Christian worldview, but his statement applies to all religions and reflects established jurisprudence from the Supreme Court. The Court has rejected challenges under the Free Exercise Clause to governmental regulation of certain overt acts prompted by religious beliefs or principles, for "even when the action is in accord with one's religious convictions, [it] is not totally free from legislative restrictions." Braunfeld v. Brown, 366 U. S. 599, 366 U. S. 603.
*
As the attorney said about the other commissioner, "I need to make clear that
what that commissioner was referring to was the
previous decision of the Commission, which is
that no matter how strongly held a belief, it
is not an exception to a generally applicable
anti-discrimination law."
*
And, it IS established jurisprudence.. Piggie Park Enterprises was, in 1964, a drive-in BBQ chain created and operated by Maurice Bessinger, the Baptist head of the National Association for the Preservation of White People. Bessinger's restaurants did not allow African-Americans to eat in the restaurant.
*
The defendant Bessinger denied the discrimination and argued that the Civil Rights Act violated his freedom of religion under the First Amendment as "his religious beliefs compel him to oppose any integration of the races whatever."
*
Here is what the SCOTUS had to say about that: "The free exercise of one's beliefs, however, as distinguished from the absolute right to a belief, is subject to regulation when religious acts require accommodation to society (citations). Undoubtedly defendant Bessinger has a constitutional right to espouse the religious beliefs of his own choosing, however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens. This court refuses to lend credence or support to his position that he has a constitutional right to refuse to serve members of the Negro race in his business establishments upon the ground that to do so would violate his sacred religious beliefs."
*
Bessinger's defense: “I’m just a fair man. I want to be known as a hard-working, Christian man that loves God and wants to further (God’s) work throughout the world as I have been doing throughout the last 25 years”
*
So, NO, Whipper, it isn't about quashing Christian thought. It is about giving LGBTs the same protection from religious homophobes that Black people have from religious racists.....and the only difference between the two is their target.

( | suggest removal )

Packman says... December 7, 2017 at 9:56 p.m.

Hey Pop - Gawd Jesus, you are wholly insufferable. It's not complicated at all. Either you support killing human life in the womb purely for convenience sake or you don't. I do not. Why is that so hard for you to say?
.
Hey 23cal - Just curious, are you gay?

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TimberTopper says... December 8, 2017 at 6:01 a.m.

All religions are to the reader whatever the reader thinks what they have read is telling them. Makes no difference the religion. The bad part is that so many have had to die as a result of religious beliefs, theirs or others, throughout world history. And part of it simply because of people either being told or thinking the one that is theirs, is the only true one.

( | suggest removal )

Whippersnapper says... December 8, 2017 at 9:19 a.m.

23,
The baker here did not refuse to do business. He offered to let them buy anything he had in stock, he just refused to make a custom cake for them. Huge difference from the restaurant in the case you cited.
.
Bear,
You apparently didn't read what I said after that. You can tell that a couple violates the male and female thing by looking at them. You can't tell whether they are divorced or adulterous by looking at them. If one of them had gone in asking about a cake, he couldn't have told until and unless they gave both names (or asked for two guys on the cake topper, etc.) You simply can't determine that at first glance with any male/female couple.

( | suggest removal )

Slak says... December 8, 2017 at 10:36 a.m.

Let them turn to their religious compounds to live amongst themselves and discriminate all they want to. When in Rome, et cetera.
Will this sign on gate suffice?
Warning
This Compound Governed by Pharisee Law.
No LGBT allowed.
All others follow the yellow line to the gift and baked goods store.

( | suggest removal )

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