Justice Anthony M. Kennedy, who almost certainly holds the crucial vote in the case of a Colorado baker who refused to make a wedding cake for a gay couple, sent sharply contradictory messages when it was argued Tuesday at the Supreme Court.
He asked a lawyer for the Trump administration whether the baker, Jack Phillips, could put a sign in his window saying, “We don’t bake cakes for gay weddings.” The lawyer, Noel J. Francisco said yes, so long as the cakes were custom made.
Justice Kennedy looked troubled and said the administration’s position was an affront to the dignity of gay couples.
Later, though, Justice Kennedy said that a state civil rights commission that had ruled against the baker had “neither been tolerant nor respectful of Mr. Phillips’s religious beliefs.”
The case, which pits claims of religious freedom against the fight for gay rights, has attracted extraordinary public attention and about 100 friend-of-the-court briefs.
Mr. Phillips says that he should not be forced to use his talents to convey a message of support for same-sex marriage. The couple, Charlie Craig and David Mullins, say that businesses open to the public should not be allowed to discriminate against gay men and lesbians.
The case is a sort of sequel to the court’s 2015 decision establishing a constitutional right to same-sex marriage.
Gay rights groups say that allowing businesses to refuse to provide services for same-sex weddings would undermine the decision’s promise of equality. The owners of some businesses that run on religious principles say they should not be made to choose between the demands of their consciences and their ability to make a living.
Around the nation, businesses like bakeries, flower shops and photography studios have argued, so far with very little success, that forcing them to serve gay couples seeking to celebrate their unions violates the constitutional right to free speech.
by Adam Liptak, New York Times – December 5, 2017
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