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06 December 2017, 01:06 | Terri Saunders
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The Supreme Court appeared divided down the middle Tuesday over a Colorado baker's refusal to design a wedding cake for a same-sex couple, the latest test in the continuing legal battle between gay rights and religious expression.
In the first, which the Supreme Court considered this morning, the Colorado Civil Rights Division ruled that a cake shop could not refuse to make a wedding cake for a gay couple, calling it discriminatory, because its refusal was based upon the sexual orientation of the customers.
Mr Mullins and Mr Craig continue to argue that they have been discriminated against.
The Trump administration and many other conservative campaigners support this position.
"It means that there's basically an ability to boycott gay marriages", said the author of the 2015 opinion extending same-sex marriage nationwide.
Early in a riveting argument at the high court Tuesday, Kennedy anxious that a ruling for baker Jack Phillips might allow stores to post signs that they "do not bake cakes for gay weddings". The 81-year-old justice expressed concern about an "affront to the gay community".
Francisco replied that there "are dignity interests on the other side here, too".
The commission ruled that Phillips violated the state's anti-discrimination law when he refused to make a wedding cake for Charlie Craig and David Mullins.
But later he said Colorado had been "neither tolerant nor respectful" of the religious views of Denver-area baker Jack Phillips.
Supporters of both sides gathered for days outside the court for the chance to watch the session and were out in force on Tuesday.
"This case is about more than us, and it's not about cakes", Mullins said in a meeting.
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By all appearances, the case will divide the justices along ideological lines. A jeweler? A makeup artist?
No, Waggoner said, "because it is not speech". Kagan wanted to know: "Why is there no speech in creating a wonderful hairdo?" and "Where would you put a tailor?" "A custom wedding cake is not an ordinary baked good; its function is more communicative and artistic than utilitarian", Solicitor General Noel Francisco argued. "That's what everybody is trying to get to".
After being denied a custom cake, Craig and Mullins filed a complaint against Phillips with Colorado's Civil Rights Commission.
Flash forward to 2012, when same sex marriage was not yet legal in Colorado, but two men walked into the bakery. "I would not like to utilize my aesthetic gifts to make something that conflicted with my Christian confidence", he said in a meeting, noticing that he has additionally declined to make cakes to observe Halloween. That struck him as unfair, he said.
Phillips at that point took his case to the Supreme Court and the judges consented to take it up in the wake of reflecting on it for a little while.
"(But) no one is suggesting that the baker has to march in the parade", Cole said.
To refuse to sell any t-shirt to a person simply because he is gay would violate the statute, whereas refusing to print a t-shirt which promote a gay lifestyle or activities, for anyone regardless of sexual orientation, is not illegal discrimination.
In one of the most animated oral arguments the high court has held, justices on both sides peppered four lawyers with questions to illustrate how their decision might affect other merchants, such as chefs and florists, and other minority groups, such as Catholics and African Americans.
Lawyers for Jack Phillips relied on two parts of the First Amendment - free exercise and free speech - to make his case, and at times Kennedy seemed torn during the lively and sometimes rapid-fire arguments.
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