Dec 5, 2017

Kennedy torn between Christian baker, same-sex couple

Protesters outside the Supreme Court. Photo: Jacquelyn Martin/AP

Supreme Court Justice Anthony Kennedy, along with the court's liberal bloc, has consistently pushed the court toward a broader recognition of same-sex couples' rights. But in arguments in a critical case on Tuesday, Kennedy seemed at least open to the idea of pumping the brakes.

The bottom line: Kennedy was concerned that a Christian baker hadn't gotten the "tolerance" he deserved during a legal battle with a same-sex couple he refused to serve. That's by no means a sure sign the baker will win, but it was a signal that Kennedy might be willing to extend some latitude to people who aren't on board with the court's embrace of same-sex marriage.

The details: The court heard nearly 90 minutes of arguments today about whether vendors — in this case, a baker — can refuse to participate in same-sex weddings if they have a religious objection to same-sex marriage. Kennedy has been the decisive vote in almost every Supreme Court case about same-sex couples' rights, and he will be here, too.

Kennedy was torn. Questioning Phillips' lawyers, he said he was concerned about opening the door to businesses putting signs in their windows identifying the customers they would not serve — which he saw as "an affront to the gay community."

But Kennedy also worried that at least one Colorado civil-rights official had been biased against Phillips' religion.

  • "Tolerance is essential in a free society. And tolerance is most meaningful when it's mutual," he said. "It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs."

Food vs. expression: Phillips argues that he's not just a baker, but a "cake artist." It's an important distinction: If he's just a person who sells a product, in a store that's open to the public, a trove of existing law would likely require him to sell that product to any member of the public. (These are the laws that, for example, prohibit restaurants from refusing to serve black people.)

  • "When have we ever given protection to a food? The primary purpose of a food of any kind is to be eaten," Justice Sonia Sotomayor asked.

But Phillips says the state was compelling him to make an artistic expression — a statement, made via a specially designed cake — that he did not agree with. He's making a free-speech argument, not just a freedom-of-religion case.

Kennedy seemed to buy that distinction. Several conservative justices said Phillips could be compelled to write words on a cake, arguing that would be an expression. And Kennedy noted that, after saying he had to bake cakes for same-sex weddings, Colorado ordered Phillips to train his employees to do the same.

  • "State law, in this case, supersedes our religious beliefs — he has to teach that to his family. He has to speak about that to his family," Kennedy said.

Yes, but: All of this stood out because Kennedy has been such a stalwart ally of same-sex couples in the past. That record still stands, and today's questions were nothing close to a clear reversal.

  • Kennedy, and his liberal colleagues, also questioned how to rule in Phillips' favor without creating, as Kennedy put it, "an ability to boycott gay marriages." And they didn't seem satisfied with the answers they got.
  • Kennedy's concerns about the specific proceedings of Colorado's civil-rights panel could also provide an opening for a narrow ruling in this case — perhaps one ordering new proceedings in a lower court, or issuing a decision that would only apply to Phillips and leave the broader questions for another day.
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