Many media reporting on the oral arguments in Tuesday’s U.S. Supreme Court case Masterpiece Cakeshop v. Colorado said the court’s always pivotal vote from Justice Anthony Kennedy seemed to be leaning away from the pro-LGBT trend he has established for years. Associated Press said Kennedy seemed “conflicted.” The New York Times said he said things favorable to both sides in the case. The scotusblog analysis by Amy Howe headlined it most bluntly: The majority was “leaning toward ruling for Colorado baker.”

LGBT legal activists and their organizations were quieter than usual. Those who did comment on the record seemed cautiously optimistic. But the court’s transcript of the proceeding betrayed how unnervingly unpredictable the outcome of this dramatically important case is.

Justice Sonia Sotomayor asked the most questions of the morning, primarily aimed at shooting holes in the arguments of the attorney for the Colorado baker, Jack Phillips. Phillips was just one of several business owners the Alliance Defending Freedom (ADF) recruited who was willing to refuse service to a gay couple. In 2012 Colorado, same-sex marriage was not yet legal but it was also against state law to discriminate based on sexual orientation in public accommodations.

Chief Justice John Roberts posed the second greatest number of questions Tuesday. A moderately conservative member of the bench, he was occupied with bolstering the arguments of the baker’s ADF attorney, Kristen Waggoner.

Joining Sotomayor in challenging the ADF arguments were Justices Ruth Bader Ginsburg and Elena Kagan, along with occasional remarks by Justice Stephen Breyer.

Justices Samuel Alito and Neil Gorsuch joined Roberts on the baker’s side. With Justice Clarence Thomas being an historically reliable vote against the interests of LGBT people, the tally stood at 4 to 4, leaving Kennedy, once again, as the uncertain but decisive vote.

Kennedy has been a fairly reliable vote in support of equal rights for LGBT people in recent years. But during Tuesday’s oral argument, he seemed to turn the tables. He singled out an LGBT activist on the Colorado Civil Rights Commission for admonishment, saying she had been disrespectful and intolerant of Phillips’ stated religious beliefs. He wondered out loud whether the gay couple could not have just gone to another bakery to avoid the conflict. He expressed concern about the Commission’s order that Phillips require his staff to undergo training to ensure compliance with the state law. And he asked U.S. Solicitor General Noel Francisco, representing the Trump administration in support of the baker, “If you prevail, could the baker put a sign in his window, ‘We do not bake cakes for gay weddings?’”

Ria Tabacco Mar, an ACLU attorney and counsel of record for the gay couple –Charlie Craig and David Mullins— said she thought Kennedy’s questions gave “no indication” of how he will vote in the case. She took heart from Kennedy’s comment that putting a sign in the bakery’s window might be an “affront to the gay community.”

“He did not express any concern about applying anti-discrimination laws to conduct motivated by religious beliefs in general, which is the broader question at stake,” said Mar. But Kennedy’s comment about the LGBT member of the Colorado Commission, she said, raises the “possibility” that he might urge fellow justices to send the case back for reconsideration.

All of the justices (with the exception of Thomas, who almost never speaks during oral arguments) were very actively engaged in the discussion Tuesday, which ran 30 minutes longer than the one hour allotted.

The specific legal question was whether a person’s First Amendment right –to speech, religion, expression, or association— trumps laws prohibiting discrimination based on sexual orientation in public accommodations. The implications go much broader than the single issue of marriage licensing. Public accommodations include a wide variety of businesses serving the general public –restaurants, hotels, taxicabs, and funeral homes, to name a few.

The conflict between discrimination and the First Amendment has arisen before in the context of white business owners in the south who said their religious beliefs prevented them from serving black customers the same as white customers.

“The reason we’re asking these questions,” said Justice Stephen Breyer at one point Tuesday, “is because, obviously, we want some kind of distinction that will not undermine every civil rights law …including [those protecting] African Americans…Hispanic Americans [and] everybody who has been discriminated against in very basic things of life –food, design of furniture, homes, and buildings.”

Justice Sotomayor asked about this possibility most bluntly.

“Is your theory that public accommodation laws cannot trump free speech or free exercise claims in protecting against race discrimination?” she asked ADF’s Waggoner.

“That is not my theory,” replied Waggoner. She started to explain, as she had in written briefs, that she was trying to say that the free exercise or speech claim could trump the public accommodation laws when the business owner’s objection is not about the “person” but about the conduct the person is engaged in.

Baker Phillips has said numerous times that he refused to sell the gay couple a cake –not because the men were gay but – because they were celebrating their marriage. And Phillips said his understanding of the Bible is that marriage between same-sex partners is wrong.

But Waggoner struggled to answer Justice Kagan’s question about whether the same sort of argument would work “if your client instead objected to an interracial marriage?”

That was a “very different case,” said Waggoner.

“You are just saying race is different?” asked Kagan.

“I think race is different for two reasons,” said Waggoner. One reason, she said, is that, with race, the objection is over “who the person is, rather than what the message is.” The other reason, she said, is that courts require “compelling” reasons for treating people differently based on race. There has been no such heightened scrutiny for discrimination based on sexual orientation.

Justice Sotomayor asked Waggoner how she would address the claim that “actually, what is happening here may superficially look like it’s about the message [religious beliefs about marriage for same-sex couples] but it’s really about the person’s identity [being gay].”

Waggoner said the state had the power to decide “what speech is offensive and what is not” and that it was the state that discriminated against Phillips’ viewpoint.

The constantly turning tables

The idea that it was the baker, Phillips, who suffered discrimination rather than the one who inflicted it gained some traction with Kennedy and the conservative justices.

Justice Kennedy singled out one of the Colorado Civil Rights Commission members –LGBT activist Heidi Hess—for criticism. He said he read in the ADF’s appendix that Commissioner Hess “says freedom of religion used to justify discrimination is a despicable piece of rhetoric.”

“Suppose we thought that, in significant part, at least one member of the Commission based [her] decision on the grounds of hostility to religion,” said Kennedy to Colorado Solicitor General Fred Yarger. “…Suppose we thought there was a significant aspect of hostility to a religion in this case. Could your judgment [against Phillips] stand?”

(It is worth quoting here what Hess actually said: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust…we can list hundreds of situations where freedom of religion has been used to justify discrimination. And, to me, it is one of the most despicable piece of rhetoric that people can use –to use their religion to hurt others.”)

[Correction: On January 8, Colorado Solicitor General Frederick Yarger sent a letter to the clerk of the U.S. Supreme Court to ask that court records be corrected to indicate that Heidi Hess was not the speaker of the above statement. The speaker was then-Commissioner Diann Rice. Hess made us aware of Yarger’s correction on June 4.]

Yarger said there might be a problem if the “entire proceeding” against Phillips “was begun because of an intent to single out religious people….”

But “that was not the fact here,” he said.

Justice Neil Gorsuch jumped in to say that there had been a second commissioner out of the seven who had said something similar to Hess.

Yarger again said he didn’t think the complaint against Phillips originated out of a desire by the state to punish religious people and noted that the state law also prohibited discrimination based on religion. But Justice Samuel Alito interjected that he believes there “appears to be a practice of discriminatory treatment based on viewpoint.” As evidence, he noted that the Colorado commission did not take any action against three bakers who refused to decorate cakes with a message opposing same-sex marriage.

“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,” said Alito. Yarger reminded the justices that the Commission at no time compelled Phillips to create a cake that expressed approval of same-sex marriage. It said only that he had to sell to same-sex couples the same things he made available to male-female couples.

“Do you disagree with the fact that [Phillips] would not sell to anybody a wedding cake that expresses approval of same-sex marriage?” asked Alito.

“What he may not do, as a public accommodation that offers to the public,” said Yarger, “is decide that he won’t sell somebody a product that he would otherwise sell because, in his view, the identity of the customer changes the message.”

When Alito protested that Phillips didn’t discriminate based on the couple’s identity but because of their “message,” Yarger said the message “depended entirely on the identity of the customer….”

Kennedy, when he rejoined the discussion he initiated about a commissioner’s statement he perceived to be hostile to religion, waxed philosophic.

“Tolerance is essential in a free society, and tolerance is most meaningful when it’s mutual. It seems to me,” said Kennedy, “that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

Then in a somewhat strange addendum, Kennedy seemed to suggest that the gay couple should have shown some tolerance and respect, too: “We assume there were other shops –other bakery shops available.”

Yarger said the state legislators had spent years working on the legislation and made various exceptions for places of worship. But ultimately, he said, the legislators “decided we can’t make exceptions here for same-sex people who deserve the same protections if we wouldn’t make those same exceptions for discrimination based on race and sex and religion.”

(It is worth noting here that Kennedy wrote the 1996 decision in Romer v. Evans that struck down a Colorado law (Amendment 2) because it barred LGBT people “from securing protection against the injuries that these public accommodations laws address.” David Cole, the ACLU attorney representing the gay couple in Tuesday’s argument, was echoing Kennedy’s Romer decision when he told the court that to allow a business to refuse service to a couple because they are gay “would be to constitutionally relegate gay and lesbian people to second-class status….”)

Cake is art, hair and make-up are not

As uncertain as Kennedy’s vote is in Masterpiece, there was still much to enjoy in the sparring by the other justices, with the attorneys in the case and with each other.

In response to Waggoner’s claim that baker’s cake made him a de facto speaker at the gay couple’s wedding, Justice Ginsburg asked for more. She noted that, certainly it can be said that the couple who is marrying speak at a wedding, as does the officiant.

“But who else speaks at a wedding?”

“The artist speaks,” said Waggoner. “It’s as much Mr. Phillips’ speech as it would be the couple’s.”
“Who else, then?” asked Ginsburg. “Who else is an artist [engaging in speech at the wedding]? Say, the person who does floral arranging, owns a floral shop? Would that person also be speaking at the wedding?”

Yes, said Waggoner, assuming the floral arrangements are custom-made.

“How about the person who designs the invitation?” asked Ginsburg.

“Yes,” said Waggoner.

“Or the menu for the wedding dinner?”

Again, Waggoner said yes.

But when Justice Elena Kagan asked about the hair stylist, Waggoner replied, “Absolutely not.”

“There’s no expression or protected speech in that kind of context.”

Why not, asked Kagan. “It’s the makeup ‘artist’.”

Waggoner tried to explain the difference. She said that, when the court “is looking at whether speech is involved, it asks the question of, ‘Is it communicating something and is it analogous to other protected forms of speech.…’”

Kagan said 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.” What’s the difference, she asked.

Waggoner said the difference is that make-up is “not speech.”

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

Waggoner proceeded to say that, not only was a hairstylist and a make-up artist not engaged in “speech,” neither was a tailor or a wedding dinner chef.

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

Solicitor General Francisco had to navigate a tightrope, too. He expressed concern about the right of artists to be able to control the message of their work and suggested Colorado’s law might force an African American sculptor to design a cross for use in a KKK event. But then he seemed to suggest that the baker could refuse to sell a wedding cake to a gay couple only if the couple asked for a custom-made cake.

Shannon Minter, legal director for the National Center for Lesbian Rights, said he was “optimistic that a majority of the court will not create any new constitutional exceptions to anti-discrimination laws.”

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