Justices Sharply Divided in Gay Rights Case

By ADAM LIPTAK
DEC. 5, 2017

WASHINGTON — The Supreme Court entered the latest battleground in the culture wars on
Tuesday, hearing arguments in a hard-fought clash between gay rights and claims of religious
freedom that was a sort of sequel to the court’s 2015 decision establishing a constitutional
right to same-sex marriage.
The new case involves the refusal of a Colorado baker, Jack Phillips, to make a wedding cake
for a gay couple, and it had some justices worried that a ruling in his favor would undermine
the 2015 decision’s promise of equality. But other justices said that a tolerant society must
leave room for good-faith dissent based on religious principles.
Justice Anthony M. Kennedy, who almost certainly holds the crucial vote in the case, said
both things.
He asked whether a baker could put a sign in his window saying, “We do not bake cakes for
gay weddings.” A lawyer for the Trump administration, which supports Mr. Phillips, said yes,
so long as the cakes were custom made.
Justice Kennedy looked troubled. “You would not think that an affront to the gay
community?” he asked.
Later, though, Justice Kennedy said that a state civil rights commission that had ruled against
the baker had been “neither tolerant nor respectful of Mr. Phillips’s religious beliefs.”

People gathered to support Jack Philipps, the Colorado baker, outside the Supreme Court in Washington on
Tuesday.
Credit
Zach Gibson for The New York Times

The case arose from a brief encounter in 2012, when David Mullins and Charlie Craig visited
Mr. Phillips’s bakery, Masterpiece Cakeshop, in Lakewood, Colo. The couple were going to be
married in Massachusetts, and they were looking for a wedding cake for a reception in
Colorado.
Mr. Phillips turned them down, saying he would not use his talents to convey a message of

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support for same-sex marriage as that would clash with his religious faith. The couple say they
were humiliated by Mr. Phillips’s refusal to serve them, and they filed a complaint with
Colorado’s civil rights commission.
Kristen K. Waggoner, a lawyer for Mr. Phillips, said the state should not be able to force him
to endorse same-sex marriage in violation of his religious principles. But she took a different
position about whether a baker could refuse to create a cake for an interracial marriage.
Solicitor General Noel J. Francisco, the Trump administration lawyer, also said that it would
be harder to justify discrimination against interracial couples than gay ones. “Race is
particularly unique,” Mr. Francisco said.
That distinction did not seem to sit well with some justices. And David D. Cole, a lawyer for
the couple, said it would relegate gay and lesbian couples to “second-class status.”
But Chief Justice John G. Roberts Jr. said the court’s 2015 decision had anticipated good-faith
disagreements over gay unions.
“It went out of its way to talk about the decent and honorable people who may have opposing
views,” Chief Justice Roberts said, referring to Justice Kennedy’s majority opinion. (The chief
justice had dissented.)
Photo

The couple, Charlie Craig, left, and David Mullins, say that businesses open to the public should not be allowed
to discriminate against gay men and lesbians.
Credit
Zach Gibson for The New York Times

The remark was a sign of Justice Kennedy’s central role in the new case, Masterpiece
Cakeshop v. Colorado Civil Rights Commission, No. 16-111. He is at once the court’s most
prominent defender of gay rights and its most committed supporter of free speech.
In his majority opinion in the 2015 gay marriage decision, Obergefell v. Hodges, he indeed
seemed to anticipate clashes like the one from Colorado, calling for “an open and searching
debate” between those who opposed same-sex marriage on religious grounds and those who
considered such unions “proper or indeed essential.”
At Tuesday’s argument, he said a broad ruling for Mr. Phillips could undermine the decision
by allowing all sorts of artists, artisans and professionals to refuse to provide goods and
services for same-sex weddings.
“The problem for you is that so many of these examples — and a photographer can be
included — do involve speech,” Justice Kennedy told Mr. Francisco. “It means that there’s
basically an ability to boycott gay marriages.”

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But Justice Kennedy also indicated that a member of the state’s civil rights commission may
have been biased against Mr. Phillips. The commissioner had said that using religious
freedom to justify discrimination was “despicable.”
Frederick R. Yarger, a lawyer for the commission, said he disavowed the commissioner’s
comment, but Justice Kennedy did not appear satisfied.
“Tolerance is essential in a free society,” Justice Kennedy said. “And tolerance is most
meaningful when it’s mutual. It seems to me that the state in its position here has been
neither tolerant nor respectful of Mr. Phillips’s religious beliefs.”
Photo

Mr. Phillips, center, says that he should not be forced to use his talents to convey a message of support for
same-sex marriage.
Credit
Zach Gibson for The New York Times

The practical implications of Justice Kennedy’s concerns were unclear. They left open the
possibility, for instance, that the Supreme Court could return the case to the commission for a
rehearing before an unbiased panel. That prospect seemed to intrigue Chief Justice Roberts.
Justice Kennedy also seemed troubled by a part of the commission’s ruling that required Mr.
Phillips to retrain his employees, who included family members, and to tell them that a state
anti-discrimination law overrode their religious beliefs. “He has to teach that to his family,”
Justice Kennedy said. “He has to speak about that to his family.”
Justice Ruth Bader Ginsburg said the requirement was routine. “All he has to instruct them”
she said, “is this is what the law of Colorado requires.”
Tuesday’s argument, which lasted almost 90 minutes instead of the usual hour, appeared to
divide the justices along the usual ideological lines.
The more liberal justices questioned whether all sorts of people — tailors, hair stylists,
makeup artists, chefs, architects — could refuse to supply goods and services for same-sex
weddings. Conservative justices considered whether artists can be required to convey
messages with which they profoundly disagree.
Ms. Waggoner said her client was an artist who creates “a temporary sculpture” when he
makes a wedding cake. On the other hand, she said, “the tailor is not engaged in speech, nor
is the chef engaged in speech.”
Justice Kagan appeared incredulous. “Whoa,” she said. “The baker is engaged in speech, but
the chef is not engaged in speech?”
Justice Sonia Sotomayor also seemed unpersuaded. “When have we ever given protection to a

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food?” she asked.
Justice Stephen G. Breyer said that there was no way to rule for Mr. Phillips without inflicting
grave damage on principles of equality. “The reason we’re asking these questions,” he said, “is
because obviously we want some kind of distinction that will not undermine every civil rights
law.”
Justice Samuel A. Alito Jr. said there was an odd feature to the Colorado case. When Mr.
Phillips turned down the couple, Justice Alito said, same-sex marriage was not yet legal in the
state. “So if Craig and Mullins had gone to a state office and said we want a marriage license,
they would not have been accommodated,” Justice Alito said.
“And yet when he goes to this bake shop and he says I want a wedding cake, and the baker
says, ‘No, I won’t do it,’ in part because same-sex marriage was not allowed in Colorado at the
time, he’s created a grave wrong,” Justice Alito said. “How does that all that fit together?”
Mr. Phillips has said that he does not discriminate against gay people and will sell them
anything off his store’s shelves. That includes wedding cakes, said Ms. Waggoner, his lawyer.
“In the context of a pre-made cake,” she said, “that is not compelled speech.”
That position puzzled Justice Kennedy. “Didn’t he express himself when he made it?” Justice
Kennedy asked.
Toward the end of the argument, Justice Kennedy appeared to reject an argument from Mr.
Cole, the couple’s lawyer, that Mr. Phillips had discriminated against the couple based on
their identity as gay men.
Instead, Justice Kennedy seemed to embrace a distinction pressed by Mr. Phillips’s lawyers —
that Mr. Phillips has nothing against gay people but objected to same-sex marriage because it
was at odds with his religious beliefs.
“It’s not their identity,” Justice Kennedy told Mr. Cole. “It’s what they’re doing.”
“I think your identity thing is just too facile,” Justice Kennedy said.
A version of this article appears in print on December 6, 2017, on Page A1 of the New York edition with the headline:
Justices Debate Religion’s Place In a Cake Case.