SPEAKING on the steps of the Supreme Court after a hearing that pitted gay rights against freedom of expression, David Mullins, who was denied a wedding cake in 2012 by Jack Phillips, a conservative Christian baker, said LGBT people “deserve the right to live their lives in public without having that love turned into a weapon to harm us”. He said that he and his partner, Charlie Craig, had brought the case so that other couples could be protected from “the pain and humiliation” they experienced when Mr Phillips told them he does not “make cakes for same-sex weddings”. Masterpiece Cakeshop v Colorado Civil Rights Commission is “not about cake”, Mr Mullins said. “It’s about freedom.”
Mr Phillips would agree with this characterisation of the case—but with an emphasis on his freedom not to participate in the celebration of a marriage he considers a “sacrilege”. In the oral argument, Kristen Waggoner, Mr Phillips’s lawyer, told the justices that asking her client to supply a “temporary sculpture” for a gay wedding is to require him to express “messages that violate [his] religious convictions”. Colorado’s public-accommodations law barring shop owners from turning away customers “because of…sexual orientation” should not be enforced in a way that compels him to abandon his conscience.
Masterpiece Cakeshop is a hard case, as the justices’ frustrated and furious questioning of both sides showed. For the first half of the hearing, things looked positive for the gay couple and Colorado’s civil-rights division. Justices Ruth Bader Ginsburg and Elena Kagan asked whether a string of other businesses involved in throwing a wedding also deserve First Amendment protection. What about the people doing the floral arrangements, Justice Ginsburg asked, or those designing the invitation or the menu? All these professionals’ expression rights are protected, Ms Waggoner replied. But the First Amendment umbrella “absolutely” does not cover hair stylists, makeup artists or chefs, she said, because their work does not constitute “speech”. This parsing drew a “whoa” from an incredulous Justice Kagan. Hairdressers strive to create “a wonderful hairdo” and makeup artists “might feel exactly as your client does” regarding the “skill and artistic vision” associated with their craft. Conservative Justice Samuel Alito joined the “what about” game, too, seeming surprised by Ms Waggoner’s claim that “an architectural design” would not be protected under the First Amendment.
Reflecting on this mish-mash of answers, Justice Stephen Breyer admitted to being “baffle[d]” by the proposition that Michelangelo is “not protected when he creates the Laurentian stairs”, but that Mr Phillips “is protected when he creates the cake without any message on it for a wedding”. How, he asked Ms Waggoner, are we to draw the line? “That’s what everybody is trying to get at.” With a reference to a 1964 case involving the white-owned Ollie’s Barbecue in Birmingham, Alabama that refused to serve African Americans, Justice Breyer pressed for “a distinction that will not undermine every civil rights law” protecting blacks, Hispanics and other disfavoured groups in America.
After more colloquy, Ms Waggoner’s proposed distinction slowly emerged: if a proprietor’s refusal to serve a customer is “based to who the person is, rather than what the message is”, it enjoys no First Amendment protection. In reply, Frederick Yarger, Colorado’s solicitor general, argued that Mr Phillips’s demurral “depended entirely on the identity of the customer who was ordering the cake”. David Cole, a lawyer from the American Civil Liberties Union, reiterated this point. When Messrs Craig and Mullins entered Masterpiece Cakeshop, “there was no request for a message” on a cake. Mr Phillips simply “refused to sell them any wedding cake. That’s identity-based discrimination”.
This is the lynchpin of the case against the baker, so it should have been alarming for the couple when Justice Kennedy—probably the key vote on a fractured court—said the baker seems to have “nothing against gay people” per se. Instead, Justice Kennedy explained, it’s just that Mr Phillips doesn’t “think they should have a marriage” because same-sex nuptials are “contrary to [his] beliefs”. In sum, he told Mr Cole, “your identity thing is just too facile”.
This statement may be enough of a sign the perennial swing voter is leaning toward the baker. But another dimension of Justice Kennedy’s jurisprudential worldview could prove even more decisive: his concern with how the law affects human dignity. Early in the argument, Justice Kennedy said it would be an “affront to the gay community” if the baker “put a sign in his window” saying he does not bake cakes for gay weddings. But later, pointing to a comment by one of the Colorado commissioners that religion has been used to justify such atrocities as slavery and the Holocaust and is “despicable”, he seemed even more sympathetic to the baker. “Tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual”. Colorado, he added, “has been neither tolerant nor respectful of Mr. Phillips’s religious beliefs”.
Caution is the watchword when basing Supreme Court predictions on oral arguments. Justice Kennedy’s first question in the 2015 Obergefell hearing seemed to place him on the side of traditional marriage, but he went on to write the decision quite the other way. With twin commitments to First Amendment freedoms and LGBT equality, Justice Kennedy’s interior monologue must be the most fraught of all the justices’. We may have to wait until June to find out which of his principles holds sway—and whether the rights of the baker or the couple are vindicated.