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U.S. Supreme Court justices signal Masterpiece Cake case will be difficult decision
Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, CO decorates a cake for a client on Sept. 21, 2017. Phillips refused to bake a cake for a same-sex couple in 2012 and is now taking his case to the Supreme Court following the Colorado Civil Rights Commission's ruling that he bake cakes for same-sex couples or not bake wedding cakes altogether. - photo by Kelsey Dallas
There are no easy answers in the case of a Christian baker and the gay couple who wanted a wedding cake.

Tuesday's oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission featured tough questions, complex hypothetical scenarios and justices concerned about what they've been asked to do.

"What people are trying to do with (an exception based on religious beliefs) is minimize the harm it does to the principle of the statute while making some kind of compromise for people of sincere belief on the other side," said Justice Stephen Breyer. "I can't think of a way to do it."

Oral arguments lasted nearly 90 minutes, as the justices' many calls for clarification pushed the discussion beyond the allotted hour. The lengthy debate pointed to a split decision, with Justice Anthony Kennedy likely serving as the swing vote.

The Masterpiece Cakeshop case centers on whether a Christian wedding-cake designer can refuse to decorate a cake for a same-sex celebration. Those who support the baker, Jack Phillips, say his custom cakes are a form of speech protected by the First Amendment.

But justices asked about the speech rights of photographers, makeup artists and architects. Some were skeptical about finding a way to protect Phillips without undermining civil rights laws nationwide, and asked the baker's lawyer to sort it out.

"Words and symbols would be protected speech, and the question would be whether the objection is to the message provided or if it's to the person," said Kristen Waggoner, senior vice president of Alliance Defending Freedom, representing Phillips.

Lawyers supporting the state of Colorado and Charlie Craig and David Mullins, who were turned away by Phillips, also faced tough questions. The court's more conservative justices wondered why members of the Colorado Civil Rights Commission appeared unconcerned with the baker's religious convictions, reminding the attorneys that members of the LGBT community aren't the only ones who deserve to be treated with dignity.

"The commission said it's OK for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage. But when the tables are turned and you have a baker who opposes same-sex marriage, that baker may be compelled to create a cake," said Justice Samuel Alito.

Argument overview

The high-profile Masterpiece Cakeshop court battle originated with a chat about a wedding cake that lasted less than 10 minutes. In July 2012, Craig, Mullins and Craig's mother, Debbie Munn, met with Phillips, who said his faith prevented him from baking and decorating a cake for a same-sex wedding.

Colorado's public accommodations law prevents discrimination based on sexual orientation, so Craig and Mullins filed a complaint against Phillips. An administrative law judge, the Colorado Civil Rights Commission and then the Colorado Court of Appeals ruled that Phillips engaged in unlawful discrimination, forcing the baker to appeal to the U.S. Supreme Court.

Waggoner and U.S. Solicitor General Noel Francisco argued in support of the baker. Waggoner focused on cake decoration as a form of speech, while Francisco, representing the Trump administration, explained why religious exemptions for someone like Phillips are important and need not threaten public accommodations laws across the country.

"This court has recognized that artistic expression doesn't need to include words and symbols to express a message or to be protected speech," Waggoner said.

The justices' questions focused on how to draw a line between protected speech and required conduct.

"The reason we're asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law," Breyer said. He later expressed concern that a broad ruling in favor of the baker would create "chaos."

Colorado Solicitor General Frederick Yarger and David Cole, legal director for the American Civil Liberties Union, argued on behalf of the state of Colorado and the gay couple, respectively. Both were asked to explain how to protect members of the LGBT community without harming religious believers like Phillips.

"Tolerance is essential in a free society. And tolerance is most meaningful when it's mutual," said Kennedy.

Kennedy was the justice to watch during the proceedings, as he's widely seen as the swing vote in what many predict will be a 5-4 ruling. During his time on the high court, he's been a staunch defender of religious exercise rights, but he's also authored the majority opinions in groundbreaking LGBT rights cases, such as the June 2015 ruling that legalized same-sex marriage.

"Justice Kennedy's opinions have rested, among other grounds, on the view that constitutional principles prohibit denying gay people the dignity and status afforded to others. At the same time, he has been more solicitous than the court's liberals of arguments that religious belief can justify exceptions from general legal obligations," The Wall Street Journal reported in its live blog of court proceedings.

Kennedy posed difficult questions to both sides during oral arguments, attempting to determine when religious protections unduly harm members of the LGBT community.

"If you prevail, could the baker put a sign in his window, 'We do not bake cakes for gay weddings?'" he asked Francisco, noting that a sign like that could be "an affront to the gay community."

Like Alito, he also pressed Yarger on the Colorado Commission's treatment of Phillips, questioning whether commissioners' biases impacted their ruling.

"Suppose we thought there was a significant aspect of hostility to a religion in this case. Could your judgment stand?" Kennedy asked.

The stakes

The Supreme Court's ruling in the Masterpiece Cakeshop case, which will come before the end of June 2018, will affect more than one bakery in Colorado. It will set the tone for dozens of ongoing cases involving a clash between conservative religious beliefs and support for the LGBT community.

Throughout oral arguments, justices appeared to struggle with how to resolve deeply held beliefs on both sides of the religiously based service refusal debate.

"It was clear that many of the justices wished there was a way to reconcile the competing values in a workable way even if the arguments ended with no evident path to such an outcome," The Wall Street Journal reported on its blog.

The baker's supporters say a ruling for Phillips would create a win-win situation. Religious believers could participate fully in the public square without compromising their convictions, and members of the LGBT community could find bakers who want to take part in their wedding.

"There's no need for compromise in the sense that someone has to give and someone has to lose," said Jeremy Tedesco, senior counsel for Alliance Defending Freedom. "The reality is we've always lived in a free society where people have very different beliefs about core issues."

However, LGBT rights advocates argue that it's unfair to create a world in which gays and lesbians risk being turned away from the stores they enter. The best path forward requires protecting the dignity of LGBT Americans, Mullins said.

"Religious freedom is essential in our country, and it's protected in the Constitution," he said. "But you cannot practice your faith in a way that demeans and denigrates others."

The last five years have been emotional ones for Craig, Mullins, Phillips and hundreds of others, as the scene in front of the Supreme Court Tuesday morning illustrated. Faith leaders, LGBT rights activists and advocacy groups competed for pedestrians' attention, carrying signs with messages like "My faith doesn't discriminate" and "The government is not the cake boss."

The rallying continued online, where supporters for the baker and gay couple used hashtags such as #JusticeForJack and #OpenToAll to comment on the case.

Both sides say they're looking forward to a resolution.

Im profoundly thankful to the Supreme Court of the United States for taking my case. I hope and pray it will affirm the freedom of artists to peacefully express themselves in ways consistent with who they are," Phillips said in a statement.

"The one word I would use to describe today is surreal," Craig said. "I hope the Supreme Court decides to go in their ruling with what Colorado has said, that he did discriminate against us."

Mullins added, "You never imagine you're going to be at the Supreme Court. But now that we're through the day, it's just a waiting game."
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