- The Washington Times - Tuesday, December 5, 2017

The Supreme Court justices appeared split along ideological lines except for Justice Anthony M. Kennedy, who lobbed both parties with tough questions on Tuesday, in a case testing the limits of gay rights and First Amendment freedoms.

Court watchers are calling it the biggest case since the Supreme Court legalized same-sex marriage nationwide in 2015, as justices will decide whether people with religious objections, like wedding-cake baker Jack Phillips, can refuse to serve same-sex weddings.

“Tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual,” Justice Kennedy said.

“It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

But Justice Kennedy also suggested displaying a sign outside a storefront that said the business won’t serve gay weddings would be an affront to the gay community.

The Trump administration has backed Mr. Phillips, a devout Christian baker, who argued his free speech right to express himself through his cakes was infringed when Colorado’s Civil Rights Commission ordered him to bake cakes for everyone, regardless of their sexual orientation.

Lower courts ruled Mr. Phillips violated Colorado’s anti-discrimination law by refusing to create the wedding cake for Charlie Craig and Dave Mullins in 2012.

Colorado’s law makes it illegal for businesses to discriminate against people based on sexual orientation, race or religion. More than 20 states have similar laws.

“Dignity cuts both ways,” said Kristen Waggoner, an attorney with Alliance Defending Freedom, a religious liberty law firm representing Mr. Phillips.

She argues Mr. Phillips is a cake-artist, and he shouldn’t be forced to express messages through his custom cakes that violate his conscience.

Chief Justice John G. Roberts, Jr., Justice Samuel A. Alito, Jr. and Justice Neil M. Gorsuch joined Justice Kennedy in critically questioning the Civil Rights Commissions’ handling of Mr. Phillips’ case.

At one point during oral arguments on Tuesday, Justice Kennedy asked about one member of the commission, which is comprised of seven individuals, who said freedom of religion was used to justify discrimination.

“Did the Commission ever disavow or disapprove of that statement?” Justice Kennedy questioned.

Justice Gorsuch brought up a second member of the commission, who he said made similar comments.

“Suppose we thought there was a significant aspect of hostility to a religion in this case. Could your judgment stand?” Justice Kennedy asked the solicitor general of Colorado.

“If there was evidence that the entire proceeding was begun because of a — an intent to single out religious people, absolutely, that would be a problem,” said Frederick Yarger, the state’s solicitor general.

Legal experts say Justice Kennedy, who authored the high court’s 2015 opinion legalizing same-sex marriage, is the swing vote in this case because he’s been favorable to LGBT rights, but also has a record of siding with the conservative justices on First Amendment issues.

The American Civil Liberties Union (ACLU), who is representing the same-sex couple, contends the court has rejected businesses avoiding anti-discrimination laws through First Amendment claims in the past.

“He refused to sell them any wedding cake,” said David Cole, an attorney for the ACLU, adding Mr. Phillips engaged in identity-based discrimination.

Justice Ruth Bader Ginsburg and Justice Elena Kagan both appeared sympathetic to the same-sex couple. Each questioned where to draw the line on the Christian baker’s argument about who could be considered an “artist.”

“Makeup artists might feel exactly as your client does,” Justice Kagan said. “Why wouldn’t … that also count?”

“Because it’s not speech,” Ms. Waggoner said.

“How do you draw a line?” Justice Kagan asked.

But Justice Sonia Sotomayor said a cake is just food.

“In the end, it’s only purpose is to be eaten,” she said.

The court is expected to issue a decision in the case by the end of its term in June.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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