Supreme Court Seems Split In Case Of Baker Vs. Same-Sex Couple; Eyes Now On Kennedy The justices' decision could have huge implications for all retailers and service providers. And it will very likely come down to Justice Anthony Kennedy.
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Supreme Court Seems Split In Case Of Baker Vs. Same-Sex Couple; Eyes Now On Kennedy

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Supreme Court Seems Split In Case Of Baker Vs. Same-Sex Couple; Eyes Now On Kennedy

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Supreme Court Seems Split In Case Of Baker Vs. Same-Sex Couple; Eyes Now On Kennedy

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KELLY MCEVERS, HOST:

One of the most anticipated oral arguments of the year happened today at the U.S. Supreme Court, the case of a Colorado baker who refused to make a wedding cake for two men who were about to get married. The case could have huge implications for all kinds of businesses. The baker says his First Amendment right of free speech and religion exempts him from antidiscrimination laws. NPR legal affairs correspondent Nina Totenberg reports.

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NINA TOTENBERG, BYLINE: Outside the Supreme Court, there was music and theater. A couple of women dressed as bakers sang a song they composed.

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UNIDENTIFIED WOMEN: (Singing) Come to my shop, my Masterpiece Cakeshop. I want to make a wedding cake for men.

TOTENBERG: And there was lots and lots of cheering, chanting and even dancing.

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UNIDENTIFIED CROWD: (Chanting) We got your back, Jack.

UNIDENTIFIED MAN: Music to my ears.

UNIDENTIFIED CROWD: (Chanting) We got your back, Jack.

TOTENBERG: But for all the sounds of a party, there were tears on both sides when baker Jack Phillips and the gay couple he refused to create a cake for emerged after the court session ended. Phillips choked up as he described the harassment and difficulties he's faced in his five-year legal battle against the state of Colorado, which has a public accommodations law barring discrimination based on race, gender, religion and sexual orientation.

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JACK PHILLIPS: Stopping the wedding art has cost us much of our business. It's hard to believe that the government is forcing me to choose between providing for my family and my employees and violating my relationship with God.

TOTENBERG: Dave Mullins and Charlie Craig, the gay couple turned away by Phillips, came to the microphones, too. Here's Craig.

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CHARLIE CRAIG: We're two regular guys. Dave and I do not have an agenda. We do, though, have hopes and dreams. We want to grow old together. And most importantly, we want everyone to be treated equally.

TOTENBERG: Inside the courtroom, all eyes were on Justice Anthony Kennedy, the author of all of the Court's gay rights decisions, including the same-sex marriage decision. At the same time, Kennedy, a Reagan appointee, is also a fierce defender of the First Amendment right of free speech and the free exercise of religion. Those values clash in this case. All of that prompted some contradictory questions from Kennedy, who's likely to be the deciding vote in the case.

The argument opened with a series of hypotheticals posed by the court's liberals. Jack Phillips contended that he's a cake artist and he thus has a First Amendment right not to create a cake for a gay wedding. But to Colorado, he's a retailer and is barred from discriminating based on race, gender, religion or sexual orientation.

Justice Ginsburg addressing the question of free speech - at the wedding ceremony, the speeches of the people who are marrying and perhaps the officiant, but who else speaks? The artist speaks, replied Kristen Waggoner, representing the baker. It's as much Mr. Phillips' speech as it would be the couple's. Justice Ginsburg - who else, then, is an artist, the person who designs the wedding invitations or the menu?

Justice Kagan - how about the jeweler or the hairstylist or the makeup artist? No, replied the baker's lawyer; none of those are artists. Why not, asked Kagan, noting that the makeup artist has the word artist in her name and may be using her creativity and artistry, too. Jack Phillips' artistry is different, Waggoner insisted, contending at one point that a chef is not engaged in speech when she creates food for a wedding or a wedding anniversary, but a baker is.

Justice Breyer - we're asking these questions because we want some kind of distinction that will not undermine every civil rights law from the year two, laws that have long barred race, sex and religious discrimination. Solicitor General Noel Francisco representing the Trump administration agreed under questioning from the justices that there should be no discrimination permitted based on race. But he urged them to allow some narrow cases of discrimination, such as in this case, when the discrimination is based on gender or religion or sexual orientation.

Justice Kennedy - the problem for you is that so many of these examples do involve speech. If you prevail, asked Kennedy, could a baker put a sign in his window saying, we do not bake cakes for gay weddings? Yes, replied Francisco. He could say he does not make custom-made cakes for gay weddings. I think that's an affront to the gay community, said Kennedy. But moments later when Frederick Yarger, the lawyer for the state of Colorado, went to the lectern, a clearly angered Kennedy pointed to a statement by 1 of the 7 members of the state's Civil Rights Commission who was quoted as saying that freedom of religion used to justify discrimination is a despicable piece of rhetoric.

Suppose, said Kennedy, that we thought at least one member of the commission based his decision against the baker in this case on a hostility to religion. Can your judgment stand? Lawyer Yarger argued that while a baker may refuse to put a message on a wedding cake if he finds it offensive, he may not refuse to sell a cake to a gay couple if he's sold the same cake to a straight couple. That, he said, is the essence of discrimination based on identity. Justice Kennedy didn't buy it. Tolerance is essential in a free society, he told the lawyer; and tolerance is most meaningful when it's mutual. It seems to me, Kennedy added, that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs.

Representing the gay couple in the case, lawyer David Cole of the ACLU told the justices that there's no evidence here that the state was targeting religion. Pressed by the court's conservatives, he reminded them of the late Justice Antonin Scalia's words. Scalia, a conservative icon, once wrote that a broad general law enforced neutrally is constitutional even when it has an incidental effect on some people's religious views. Otherwise, said Scalia, we would be in a world in which every man is a law unto himself.

Nina Totenberg, NPR News, Washington.

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