Argument analysis: Conservative majority leaning toward ruling for Colorado baker
http://www.scotusblog.com/2017/12/argument-analysis-conservative-majority-leaning-toward-ruling-colorado-baker/ December 5th, 2017
...An appeals court in Colorado rejected Phillips’ argument that forcing him to make a cake for a same-sex couple would violate his right to free speech and to practice his religion freely, but his argument found more traction at the Supreme Court today. At first, Kennedy seemed to acknowledge the impact that a ruling for the baker could have for gays and lesbians. He told Solicitor General Noel Francisco, who argued on behalf of the United States in support of Masterpiece Cakeshop, that if the baker were to win, he could put up a sign indicating that he would not bake cakes for same-sex couples. That, Kennedy suggested, would be “an affront to the gay community.â€
But later, Kennedy asked Colorado Solicitor General Frederick Yarger, representing the state, about a statement by a member of the Colorado Civil Rights Commission who noted that religious beliefs had in the past been used to justify other forms of discrimination, like slavery and the Holocaust. It is, the commission member contended, “one of the most despicable pieces of rhetoric that people can use their religion to hurt others.†If we thought that at least this member of the commission had based his decision on hostility to religion, Kennedy asked Yarger, could the judgment against Masterpiece stand? Kennedy returned to this idea again a few minutes later, telling Yarger that “tolerance is essential in a free society.†But Colorado, Kennedy posited, hasn’t been very tolerant of Phillips’ religious beliefs in this case.
The other conservative justices who spoke during the argument – Chief Justice John Roberts and Justices Samuel Alito and Neil Gorsuch – also seemed to favor Masterpiece’s arguments, while the court’s four more liberal justices largely supported the state and the same-sex couple. But even if there are five votes in favor of Masterpiece, it’s not clear how or whether the justices will draw a line that respects the religious beliefs of people like Phillips without opening up a Pandora’s box that, as Justice Stephen Breyer put it, could “undermine every civil rights law since year 2.â€...
