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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.

Go deeper

Updated 13 hours ago - Sports

The potential GOAT of chess faces intriguing challenger

Illustration: Sarah Grillo/Axios

The World Chess Championship between Norway's Magnus Carlsen and Russia's Ian Nepomniachtchi began on Friday, 1,094 days after Carlsen won his fourth consecutive title.

Why it matters: During the long, COVID-fueled layoff, chess entered a new era, and with the championship finally here, the age-old game is ready for its close-up.

Department of Interior proposes raising cost of drilling on public lands

A horizontal drilling rig and a pump jack sit on federal land in Lea County, New Mexico. Photo: Callaghan O'Hare/Bloomberg via Getty Images

Oil and gas companies should pay more to drill on federal lands and waters, the Department of the Interior argued in a report released Friday, saying that the current rates were "outdated."

Driving the news: The Department of Interior report said that the federal government's oil and gas leasing and permitting program "fails to provide a fair return to taxpayers, even before factoring in the resulting climate-related costs that must be borne by taxpayers."

14 hours ago - Health

U.S. to restrict air travel from 8 countries over new COVID variant concerns

A COVID-19 vaccine is administered. Photo by Joe Raedle/Getty Images

The U.S. will impose new air travel restrictions in response to the Omicron variant, a new COVID strain first detected in South Africa, President Biden announced Friday.

The big picture: Air travel from South Africa, Botswana, Zimbabwe, Namibia, Lesotho, Eswatini, Mozambique and Malawi will be restricted starting on Monday.

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