Dec 4, 2017

The SCOTUS wedding cake case is all about Anthony Kennedy

Illustration: Rebecca Zisser / Axios

Two years after declaring a nationwide right to same-sex marriage, the Supreme Court this week will wade into the next chapter in the gay rights debate — whether people with a religious objection to same-sex marriage must serve same-sex couples.

Be smart: Each new recognition of same-sex couples' rights has happened the same way — with Justice Anthony Kennedy and four liberal justices. That would almost certainly be the path in this week's case, too. And if Kennedy is ultimately going to retire during the Trump administration, each one of these cases takes on even more importance: Wherever Kennedy stops would likely be the stopping point for this movement overall.

Why you'll hear about this again: The Supreme Court lately has tended to rule in favor of same-sex couples, and also in favor of religious people claiming their rights to freely exercise their beliefs have been violated. Kennedy has tended to be in the majority in both groups of cases. They were bound to collide eventually.

The big picture: States and the federal government have non-discrimination laws that require business that serve the general public to serve all members of the public. They're known as "public accommodation” laws. They're the reason that, for example, lunch counters can't refuse black customers any more.

Colorado's law, like many others, prohibits discrimination based on sexual orientation. But a same-sex couple says that's exactly the discrimination they faced when Jack Phillips, the owner of Masterpiece Cakeshop, refused to bake a cake for their wedding, citing his religious objections to same-sex marriage.

The details: Phillips isn't relying solely on the First Amendment's guarantee of religious expression, but also its right to free expression more generally. His brief to the high court argues that he is "an artist using cake as his canvas" and describes his shop as "not be just a bakery, but an art gallery of cakes."

  • This is significant because Phillips is arguing that the government shouldn't be able to compel him to make a particular artistic expression. He notes that a baker who supported same-sex marriage could refuse to bake a cake opposing it (because that wouldn't be discrimination based on sexual orientation), but that he can't take the opposite view.

The Colorado Civil Rights Commission, on the other hand, says this is a much simpler case of discrimination in public accommodations.

  • "If a retail bakery will offer a white, three-tiered cake to one customer, it has no constitutional right to refuse to sell the same cake to the next customer because he happens to be African-American, Jewish, or gay," the commission says in its brief.

Oral arguments are Tuesday, and there's already a line outside the Supreme Court building. A decision is expected by June.

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