Several justices expressed concerns about the integrity of civil rights and public accommodations laws, and the Court generally struggled with the proposition that Phillips has a speech interest in his custom cakes. But Justice Anthony Kennedy and the conservative justices expressed concern about government hostility to religious believers, signaling a potential victory for the baker.
The case was occasioned when David Mullins and Charlie Craig, a gay couple, entered Jack Phillips’ Masterpiece Cakeshop in Lakewood, Colo. After a short discussion with the prospective patrons, Phillips said he would not sell them a custom wedding cake due to his deeply-held religious beliefs. Mullins and Craig filed a complaint with the Colorado Civil Rights Commission, prompting a lengthy legal battle culminating in an appeal to the high court.
Phillips says he has sold baked goods to LGBT persons in the past, and that he would similarly sell generic baked goods — including cakes — to Mullins and Craig. He refuses, however, to create a custom cake conveying a message respecting their nuptials, and argues the state cannot compel him to create speech with which he disagrees.
uring Tuesday’s argument, several justices expressed concern about the line Phillips asked them to draw. Assuming that a cake is in fact speech, Justice Elena Kagan wondered which other proprietors could also decline to provide services for a same sex wedding. Kagan used the example of a makeup artist or a hairstylist, professionals who uses a highly-specialized skill set to create beauty. Kristen Waggoner, the lawyer representing Phillips, replied that hair and makeup is not expressive.
Kagan later expressed incredulity when Waggoner said a baker creates protected expression, but a chef does not.
Attempting to extricate her from Kagan’s withering hypotheticals, Justice Samuel Alito asked if architecture could be considered speech. Waggoner said no, since architecture is primarily functional. Justice Stephen Breyer noted it would be odd indeed if a cake was considered speech, but an architectural masterpiece by Mies or Michelangelo was not.
Breyer added that a poorly-tailored free-speech exemption for religious dissenters could compromise public accommodation laws, which require businesses to treat all customers equally.
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