Kennedy Torn as First Amendment, Gay Rights Clash in Cake Case

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By Kimberly Strawbridge Robinson

All eyes were on Justice Anthony M. Kennedy during the U.S. Supreme Court clash involving a cake baker who says Colorado’s anti-discrimination laws requiring him to bake a cake for a same-sex couple’s wedding violate his First Amendment rights. But the swing-justice didn’t give away which way he’ll eventually land during oral argument Dec. 5, expressing disagreement with both sides.

Kennedy, who frequently casts the deciding vote in controversial cases, has authored some of the court’s most pivotal cases protecting both gay rights and First Amendment guarantees. The case pits these issues against each other.

The baker argues that he can’t be compelled to lend his artistic talents to convey a message with which he disagrees. He argues that the First Amendment guarantees him an exception from Colorado’s anti-discrimination law.

Kennedy was concerned that allowing such an exception here would essentially allow businesses to boycott same-sex marriage. If you prevail, could the baker just put up a sign outside his shop saying, “We do not bake cakes for gay weddings”? Kennedy asked the baker’s attorney. After the attorney essentially responded “yes,” Kennedy suggested that that would be “an affront to the gay community.”

But Kennedy was also troubled by the idea of forcing religious business owners to act in ways that violate their sincerely held beliefs.

“Tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual,” Kennedy said. It doesn’t seem like Colorado was very tolerant or respectful of the baker’s religious views here, he said.

Chaotic Result

Colorado’s anti-discrimination law forces the baker, Jack Phillips, to express a message with which he deeply disagrees because he’s compelled to create a cake that will be associated with a same-sex wedding, Phillips’s attorney, Kristen K. Waggoner, of Alliance Defending Freedom, Scottsdale, Ariz., told the justices.

The court should carve out a narrow exception to the state’s anti-discrimination laws for business owners with religious objections, U.S. Solicitor General Noel Francisco, of the Department of Justice, Washington, who argued on the baker’s side as an amicus, said.

Allowing an exception here would cause chaos with anti-discrimination laws because there isn’t a clear line for when the exception should apply, Justice Stephen G. Breyer said.

Words Matter, Maybe

Justice Neil M. Gorsuch probed where the line should be, saying that even the Colorado Civil Rights Commission—the entity that found Phillips violated the law—conceded that while a baker can be forced to bake a cake for a same-sex wedding, the baker can’t be forced to write specific words on the cake.

That wasn’t a satisfying line for Kennedy.

What if there was a Biblical verse on a pre-made cake that a same-sex couple wanted to buy for their wedding? Could the baker refuse to sell that cake to them? Kennedy asked Waggoner.

The baker would have to sell the pre-made cake with the Biblical message to the same-sex couple because the baker’s speech would have already been completed by the time the couple bought the cake, Waggoner said. Therefore, the baker isn’t being forced to create any new message, she said.

Kennedy, though, wasn’t convinced. The baker expressed himself when he initially made the cake, Kennedy said. And now the cake is being associated with a same-sex wedding, Chief Justice John G. Roberts Jr. added.

So, under your view, why couldn’t the baker get an exception? Kennedy asked.

Bakers & Chefs

The justices were confused as to what types of businesses the exception would apply to.

The line depends on whether the service being provided is expressive, Waggoner said.

This case is hard because it’s on the line, Francisco conceded. But it falls on the expressive side of that line because making a custom cake for a wedding conveys approval of that ceremony, Waggoner said.

Wouldn’t the same be true of florists, invitation designers, jewelers, hair stylists, and makeup artists, Justices Ruth Bader Ginsburg and Elena Kagan wanted to know. “Makeup artist” has the word artist right there in the title, Kagan joked.

Some of those individuals wouldn’t be exempt because their work isn’t speech, Waggoner said.

“Some people may say that about cakes, you know?” Kagan quipped.

A makeup artist “might feel exactly as your client does, that they’re doing something that’s of great aesthetic importance to the wedding and that there’s a lot of skill and artistic vision that goes into making somebody look beautiful,” Kagan said. “And why wouldn’t that person or the hairstylist also count?”

The difficulty in drawing a line between expressive services and non-expressive services crystallized when Waggoner suggested that a chef wouldn’t be able to get an exemption from preparing an anniversary dinner for a same-sex couple because a dinner isn’t expressive, Waggoner said.

“Whoa!” Kagan interjected. “The baker is engaged in speech, but the chef is not?”

Predominant Purpose

Francisco suggested that the way around the problem of sorting out expressive conduct was to look at the predominant purpose of the thing that’s being made.

What’s expressive about a cake, the predominant purpose of which is to be eaten? Justice Sonia Sotomayor asked.

It’s true that part of the purpose of the cake is to feed guests, Francisco said. But it’s also an integral part of the wedding ceremony, he added.

The question is what part is most dominant, Francisco said.

A wedding cake’s symbolic purpose is the dominant one because people pay a lot more money for wedding cakes than they do regular cakes, he argued.

And I’ve never had a wedding cake that actually tastes great, Gorsuch quipped.

But the clarity of the predominance test seemed to falter when Justice Samuel A. Alito Jr. attempted to shore it up.

Architecture is considered expression even though it also has the purpose of housing businesses and people, Alito suggested.

Waggoner, though, said that architecture wouldn’t be exempt.

So when Michelangelo built the Laurentian Library in Florence, that isn’t protected by the First Amendment, “but this cake baker is protected when he creates the cake without any message on it for a wedding?” Breyer said sarcastically.

Racial Ramifications

Waggoner suggested a different test for determining when an exception is appropriate other than predominance.

The question should be whether there is something being communicated, and whether the person communicating the message objects to it, Waggoner said. If so, there must be an exception, she said.

Assuming that baking is expressive, that would allow a baker that disagrees with interracial marriage to refuse to bake a cake for an interracial couple, Kagan said.

The racial analogy is compelling, Roberts said.

But the Supreme Court “went out of its way” in its decision affirming the right of same-sex couples to marry “to talk about the decent and honorable people who may have opposing views,” Roberts said, quoting Obergefell v. Hodges.

Lumping those people into the same group as those who are opposed to racial equality doesn’t seem to take “full account of that concept in the Obergefell decision,” Roberts said.

In fact, the position advocated by the proponents of the anti-discrimination law would require a Catholic charity that provides legal services to take a case supporting same-sex marriage, Roberts said.

The court “in Obergefell did, indeed, say that individuals are free to express their disagreement through speech with the notion of same-sex marriage, but it did not say that businesses who make a choice to open themselves to the public can then turn away people because they are gay and lesbian,” the couple’s attorney, David Cole, of the American Civil Liberties Union, Washington, said.

Accommodation Possible

Kennedy seemed to agree that there was an anti-religion bias—at least with regard to Colorado’s anti-discrimination law.

In finding Phillips in violation of the state’s anti-discrimination law, one commissioner on the civil rights commission said, “freedom of religion used to justify discrimination is a despicable piece of rhetoric,” Kennedy said.

That suggests some hostility toward religion, Kennedy said.

Especially when considered with the state’s discriminatory treatment of those with religious views against same-sex marriage, Alito said.

The Civil Rights Commission allowed a “baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage,” he said.

“But when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage,” Alito said.

When we consider that there were other bakeries willing to serve the couple here, such an “accommodation is quite possible,” Kennedy said.

The case is Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n , U.S., No. 16-111 , argued 12/5/17 .

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

For More Information

A transcript of the argument is at

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