Whether oral arguments in the Colorado wedding cake case went well for LGBTQ advocates depends on who you read. They either went horribly, or the justices were deeply divided. All eyes were naturally on Justice Anthony Kennedy, the usual swing vote in gay rulings with a history of advancing LGBTQ rights. But he's also a staunch Catholic with an equal devotion to free speech. New York Times reporter Adam Liptak opens with Kennedy's dilemma in Masterpiece Cakeshop v. Colorado Civil Rights Commission:
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.”
By all accounts, the justices seemed to line up along the usual lines, with Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, and Stephen Breyer leaning toward the same-sex couple, Charlie Craig and David Mullins, while Neil Gorsuch, Samuel Alito, Chief Justice John Roberts, and presumably Clarence Thomas (who rarely cross examines lawyers) favored the baker’s side.
Kennedy appeared simultaneously sympathetic toward the positions that both the couple and Phillips had suffered an indignity. But he was particularly pointed in questioning the lawyer for Colorado, Solicitor General Frederick Yarger, about how the state's civil rights commission had handled the case.
ThinkProgress' Ian Millhiser writes:
Pointing to a state commissioner who claimed that the idea that religion could be wielded to justify discrimination is “despicable,” Kennedy all but demanded that Yarger disavow that statement. This one commissioner’s statement, Kennedy suggested, displayed such hostility to religion that it could justify invalidating the entire ruling against Mr. Phillips. [...]
“Tolerance is essential in a free society,” Kennedy lectured Yarger. The state, Kennedy continued, has not been particularly tolerant towards Mr. Phillips. “There are other shops,” Kennedy concluded, suggesting that same-sex couples should be forced to go door to door to other bakeries until they find one willing to serve them.
If there's a silver lining for LGBTQ allies, the baker's lawyer, Kristen Waggoner, didn't do her client any favors, completely failing to provide a reasonable rationale for which business owners should be considered artists entitled to free speech protections.
Not long after Waggoner began her argument, however, the Court’s liberal members began peppering her with questions about other kinds of artistic work that may be included in a wedding celebration. Justice Ruth Bader Ginsburg asked if a florist can refuse to provide flowers to a same sex wedding (Waggoner said yes, but only if the florist provides custom arrangements). Justice Elena Kagan asked about a jeweler (Waggoner said yes). What about a hairstylist (no), or a makeup artist (no)? [...]
As the argument wore on, Waggoner found herself deeper and deeper in this hole. At one point, Waggoner claimed that a chef who cooks a beautiful and artistic meal is not engaged in speech, even though a baker is. At another, after Justice Alito asked about architecture in an apparent attempt to bail Waggoner out, Waggoner inexplicably claimed that architecture is not expressive.
Waggoner and Francisco also asserted that while Phillips discriminating against a gay couple was perfectly legal, the same discrimination directed at an interracial couple wouldn't be. That argument appeared to make the justices uncomfortable, as it should.
But most progressive observers felt like the arguments tilted in favor of the baker. Millhiser's headline was, "LGBTQ rights just had a horrible day in the Supreme Court."
The more neutral Scotusblog agreed: “Conservative majority leaning toward ruling for Colorado baker.”
Slate's Mark Joseph Stern was equally negative.
"Just got out of arguments in Masterpiece Cakeshop. I think the anti-gay baker wins 5-4," he wrote. "I only see one way progressives win: Kennedy says compelled cake-baking isn’t speech, but religious discrimination may have infected this case. Then remand for further findings on free exercise."
In other words, the justices send the case back to the Colorado Civil Rights Commission to be reheard by an unbiased group. That would allow the hight court to duck some of the stickiest issues in this case, but it would also effectively kick the can down the road until the next religious freedom v. LGBTQ equality case. Unfortunately, a future court likely won’t provide more favorable conditions for gay and transgender Americans.