Supreme Court Justice Anthony Kennedy said during oral arguments on Tuesday that Colorado did not appear to show religious tolerance when it used its public accommodations law to force baker Jack Phillips to create speech via a custom cake for a same-sex wedding that defies his religious beliefs.
The line of questioning garnered attention because Kennedy often serves as the divided high court's key swing vote, and a split vote could form again in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission.
Kennedy pointedly criticized Colorado for not being "tolerant" of Phillips' religious beliefs.
"Tolerance is essential in a free society. And tolerance is most meaningful when it's mutual," Kennedy said. "It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs."
Justices Samuel Alito and Neil Gorsuch similarly expressed concerns about the bias of Colorado’s actions against Phillips.
Though Kennedy's commentary boded well for the baker, the justice also asked whether a Phillips victory meant bakers could begin hanging signs in windows saying they would not bake cakes for gay weddings. Kennedy directed the question at U.S. solicitor general Noel Francisco, who represented President Trump’s administration supporting the baker.
Francisco answered that a victory meant the baker could hang a sign saying the baker does not serve custom wedding cakes to gay couples.
The distinction being drawn is that the creation of a custom wedding cake is a form of expression that Colorado sought to compel, as opposed to a product that has already been created and can be bought off the baker's shelf.
Left-leaning Justice Elena Kagan engaged Phillips' attorney Kristen Waggoner, senior counsel at the conservative legal group Alliance Defending Freedom, in an extended discussion over which wedding services included protected speech under the First Amendment.
Kagan asked about whether florists, jewelers, hairstylists, and makeup artists involved in weddings created speech one-at-a-time and did so in a tongue-in-cheek manner eliciting laughter throughout the courtroom.
She peppered Waggoner with questions about why Waggoner did not consider a "wonderful hairdo" expressive speech protected by the First Amendment. She also questioned Waggoner's judgment that a makeup artist was not an artist because, "it's called an artist."
When Waggoner said the services such people provided did not amount to speech, Kagan replied, "Some people might say that about cakes [not being speech], you know?"
Kagan also scoffed at Waggoner’s answer that a chef was not an artist creating speech as Phillips was as a baker.
"So the baker is speech, but the great chef who is like, 'everything is perfect on the plate and it's a work of art, it is a masterpiece'?" Kagan asked Francisco.
"Well, your honor, you have to confront that issue in every First Amendment case," Francisco answered before Alito interrupted.
"My colleagues, I think, go to more elite restaurants than I do," Alito interjected.
"Same here, your honor," Francisco said.
Kagan then said, "Well, Ollie's Barbecue," as Alito challenged Kagan’s logic about the expressive speech of a chef versus a baker by wondering what would happen if he walked into a D.C. restaurant and turned his nose up at the menu and instead produced a recipe of the custom food he really wanted instead.
"If in my dreams I could go to a Michelin, I don't know, one-tenth star, I don't know, two-star restaurant, and there was a menu of wonderful dishes created by the chef with great creativity, and I said, 'I really don't want any of these. Here is the recipe. I want you to make this for me,' do you think he would do that?" Alito asked.
"Probably not, your honor," Francisco said.
The high court’s right-leaning justices proceeded to hammer the lawyers arguing against the baker’s case with concerns and questions about the breadth of Colorado’s law.
Chief Justice John Roberts joined the right-leaning justices' barrage by questioning American Civil Liberties Union legal director David Cole about whether a nonprofit legal group such as Catholic Legal Services would violate Colorado’s law if it similarly refused to provide its services to a same-sex couple’s marriage as Masterpiece Cakeshop had done. The ACLU represented Charlie Craig and Dave Mullins, the gay couple who wanted Phillips to make a special cake for their wedding.
"So Catholic Legal Services would be put to the choice of either not providing any pro bono legal services or providing those services in connection with the same-sex marriage?" Roberts asked.
"If it is operating in the same way as a retail store, I think the answer is yes, your honor," Cole answered.
Alito wondered whether the state law gave Colorado the power to force a religious college to provide housing for same-sex married couples or let the school’s campus chapel be used for same-sex marriages in contradiction to state laws. Cole avoided answering whether the Colorado law could force the school to be used in this fashion by noting that some "religious-based exemptions" might exist.
But Gorsuch pressed Cole further and asked Alito's question again. Cole answered that he thought a generally applicable neutral law would not spawn a question about the school's free exercise of religion.
"When the state is regulating conduct neutrally, unrelated to expression, which is what this court has already said is the case with respect to public accommodations, then we can have a world in which everybody who raises an objection," Cole said. "Otherwise we would live in a society in which businesses across this country could put signs up saying we serve whites only, music lessons for Muslims need not apply, passport photos not for the disabled."
Alito also raised the timing of Phillips' refusal — before the Supreme Court legalized same-sex marriage in its Obergefell decision — as crucial to the high court's understanding of Masterpiece. Alito noted that if Craig and Mullins had walked into a Colorado government office and sought a marriage they would not have been accommodated, but Phillips' decision to not make a custom cake in the same environment was considered to be a "grave wrong."