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Pivotal Justice Kennedy poses tough questions in gay wedding case

Reuters logo Reuters 12/5/2017 By Lawrence Hurley

FILE PHOTO: Baker Jack Phillips decorates a cake in his Masterpiece Cakeshop in Lakewood © REUTERS/Rick Wilking/File Photo FILE PHOTO: Baker Jack Phillips decorates a cake in his Masterpiece Cakeshop in Lakewood The U.S. Supreme Court on Tuesday appeared closely divided with likely pivotal vote Justice Anthony Kennedy posing tough questions about a Christian baker's refusal to make a wedding cake for a gay couple but also questioning whether a Colorado civil rights commission that ruled on the issue was unduly biased against religion.

The nine justices heard arguments in the major case on whether certain businesses can refuse service to gay couples if they oppose same-sex marriage on religious grounds.

The case concerns an appeal brought by Jack Phillips, a baker who runs Masterpiece Cakeshop in the Denver suburb of Lakewood, of a state court ruling that his refusal violated a Colorado anti-discrimination law.

Kennedy, a conservative who sometimes sides with the court's four liberals in major cases, raised concerns about issuing a ruling siding with the baker that would give a green light to discrimination against gay people.

He mentioned the possibility of a baker putting a sign in his window saying he would not make cakes for gay weddings and wondering if that would be "an affront to the gay community."

But citing comments made by a commissioner on the state civil rights panel that ruled against the baker, Kennedy said there was evidence of "hostility to religion" and questioned whether that panel's decision could be allowed to stand.

In one of the biggest cases of the conservative-majority court's nine-month term, the justices must decide whether the baker's action was constitutionally protected, meaning he can avoid punishment under the Colorado law.

a man standing in a room: FILE PHOTO: Gay married couple Charlie Craig and David Mullins pose for a photo in their home in Denver © REUTERS/Rick Wilking/File Photo FILE PHOTO: Gay married couple Charlie Craig and David Mullins pose for a photo in their home in Denver

Phillips, represented by the conservative Christian advocacy group Alliance Defending Freedom, contends that law violated his rights to freedom of speech and free exercise of religion under the U.S. Constitution's First Amendment. The Supreme Court arguments focused on his free speech claim, based on the idea that creating a custom cake is a form of free expression.

The couple, David Mullins and Charlie Craig, call the baker's refusal a simple case of unlawful discrimination based on sexual orientation. Mullins and Craig are represented by the American Civil Liberties Union, which has argued that Phillips' legal team is advocating for a "license to discriminate" that could have broad repercussions beyond gay rights.

Several of the justices asked questions that suggested they are concerned about how far a ruling in favor of the baker might extend. Liberal Justice Elena Kagan wondered about whether a hairstylist, chef or a makeup artist could refuse service, claiming their services are also speech protected by the Constitution. "Why is there no speech in creating a wonderful hairdo?" Kagan asked.

Kennedy said that many examples of other businesses implicated involved free speech rights. He asked U.S. Solicitor General Noel Francisco, the Trump administration lawyer who backed the baker, what would happen if the court rules for the baker and then bakers nationwide then started receiving requests to not bake cakes for gay weddings. "Would the government feel vindicated?" Kennedy asked.

Conservative members of the court, including Chief Justice John Roberts, appeared more sympathetic to the baker.

The Supreme Court legalized gay marriage in a landmark 2015 ruling written by Kennedy, one of the court's five conservatives. The 81-year-old Kennedy, who has joined the court's four liberals in major decisions on issues such as abortion and gay rights, could cast the deciding vote. Kennedy also is a strong proponent of free speech rights. [L2N1LU1W9]

A ruling favoring Phillips could open the door for businesses that offer creative services to spurn gay couples by invoking religious beliefs, as some wedding photographers, florists and others already have done. Conservatives have filed other lawsuits also seeking to limit the reach of the 2015 gay marriage ruling.

'WE GOT YOUR BACK'

Hundreds of demonstrators on both sides of the dispute rallied outside the white marble courthouse. Supporters of Phillips waved signs that read, "We got your back Jack." As Mullins and Craig made their way into the courthouse, the two men led their supporters in chants of "Love Wins."

The case highlights tensions between gay rights proponents and conservative Christians who oppose same-sex marriage, as illustrated in comments made by demonstrators on Tuesday.

a group of people walking in front of a building: Attendees walk across the plaza outside ahead of oral arguments in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case at the Supreme Court in Washington © REUTERS/Aaron P. Bernstein Attendees walk across the plaza outside ahead of oral arguments in the Masterpiece Cakeshop v. Colorado Civil Rights Commission case at the Supreme Court in Washington

"Religious liberty is the most important right we have been given in the Constitution, and this case exemplifies it," said Paula Oas, 64, a Maryland resident. "I believe Jack is not harming others."

Sherrill Fields, 67, a lesbian Virginia resident, said she feared that if the court sides with the baker, different types of businesses will turn away gay customers.

"This kind of thing will come out of the woodwork," Fields said. "People and businesses of all sorts will deny us service. Restaurants, hairdressers, doctors, tow truck drivers, anybody that provides a service."

The legal fight broke out in 2012 when Phillips told Mullins and Craig that due to his Christian beliefs he would not be able to make a cake to celebrate their wedding. [L1N1O01FT]

Ryan Kalil smiling for the camera: FILE PHOTO: Gay married couple David Mullins and Charlie Craig pose for a photo in Denver © REUTERS/Rick Wilking/File Photo FILE PHOTO: Gay married couple David Mullins and Charlie Craig pose for a photo in Denver

The two men married in Massachusetts but wanted to celebrate their nuptials with friends in Colorado. At the time, Colorado allowed civil unions but not marriage between same-sex couples.

The couple turned to the American Civil Liberties Union, which filed a complaint on their behalf, saying Phillips had violated Colorado state law barring businesses from refusing service based on race, sex, marital status or sexual orientation.

The Colorado Civil Rights Commission found that Phillips had violated the law and ordered him to take remedial measures including staff training and the filing of quarterly compliance reports. In August 2015, the Colorado Court of Appeals also ruled against Phillips.

The Colorado Supreme Court refused to hear the case, prompting Phillips to appeals to the U.S. Supreme Court.

(Reporting by Lawrence Hurley; Additional reporting by Andrew Chung; Editing by Will Dunham)

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