The Washington Post reports:
The Supreme Court seemed closely divided Tuesday over whether the First Amendment protects a Colorado baker who refused to create a wedding cake for a same-sex couple, with Justice Anthony M. Kennedy likely to cast the deciding vote.
Kennedy, during a nearly hour-and-a-half oral argument, gave both sides reason for hope and concern. He worried that ruling for the baker would allow shops to put up window signs saying they refuse to provide wedding services for same-sex couples. But he also said Colorado had been “neither tolerant nor respectful” of the baker’s religious convictions.
Several justices questioned what other types of business owners would be exempt if the court made an exception for Phillips. “Who else is an artist?” asked Justice Ruth Bader Ginsburg. What about a florist, a chef or a makeup artist, asked Justice Elena Kagan.
Phillips’s attorney, Kristen K. Waggoner, distinguished between the baker’s highly-stylized, sculpted creations and the services provided by other professions that she said were “not speech.” “Some people might say that about cakes,” responded Kagan.
UPDATE: From the ACLU.
The case centers on Charlie Craig and David Mullins, a gay couple who entered Denver bakery Masterpiece Cakeshop in 2012 hoping to buy a cake for their wedding reception. But before any specifics of design or other details could be discussed, baker Jack Phillips informed the couple that Masterpiece would not sell products to same-sex couples. Craig and Mullins brought a complaint to the Colorado Civil Rights Commission, who found that Phillips had violated the state’s anti-discrimination law. But Phillips continued to appeal the case, resulting in one of the most consequential civil rights cases of the 21st century.
At arguments today, Justice Kennedy — who represents the court’s swing vote — expressed concern for both sides of the case. He appeared to recognize the bakery’s argument could undermine civil rights laws across the country. He also appeared to show concern about the expression, rights, and religious freedom of the bakery.
“It is hard to overstate the implications of this case,” said David Cole, legal director of the ACLU, who argued on behalf of the plaintiffs today. “Jack Phillips has claimed he has a First Amendment right to discriminate against same-sex couples. He does not. Businesses open to the public may not choose their customers. These laws ensure that everyone, including gay people, have the freedom to walk into a business and know that they will be treated the same way. A decision against Charlie and Dave would allow businesses across the country to argue that they too can refuse service based on who the customer is. As we argued in court today, the justices have an obligation to defend the principle of equal dignity under the law for all Americans — including Dave and Charlie.”