WASHINGTON — The Supreme Court seemed closely divided Tuesday over whether the First Amendment protects a Colorado baker from creating a wedding cake for a same-sex couple, with Justice Anthony M. Kennedy likely to cast the deciding vote.
Kennedy, who wrote the court’s 5 to 4 decision in 2015 saying gay couples have a constitutional right to marry, speculated about what might happen if a decision in baker Jack C. Phillips’s favor prompted requests for bakers across the country to refuse to make cakes for same-sex couples. Would the federal government feel vindicated? Kennedy asked.
On the flip side, just moments later, Kennedy sharply questioned Frederick R. Yarger, Colorado’s solicitor general. The justice seemed offended by a comment made during the deliberations of the Colorado Civil Rights Commission when one commissioner said: ‘‘And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.’’
At one point, Kennedy and some conservative justices raised the possibility that the proceedings against the baker had been infected by bias.
The rest of the court seemed to line up as expected. Liberal justices worried that an exception for Phillips would gut public accommodations laws that require businesses to serve the public without discriminating because of race, gender, religion, and, in the case of Colorado and more than 20 other states, sexual orientation.
The court’s conservatives were concerned with what Justice Samuel A. Alito Jr. said was a ‘‘disturbing record’’ from the Colorado Civil Rights Commission and the Colorado Court of Appeals, which ruled against Phillips.
That raised the possibility that the case could be returned. But they also seemed sympathetic to Phillips’s argument that, as a ‘‘cake artist,’’ the law violates his freedom of expression to create a custom cake for a same-sex wedding. His religious beliefs teach that marriage is only between a man and a woman.
David D. Cole, legal director for the American Civil Liberties Union, which represents the couple, Charlie Craig and David Mullins, acknowledged there were complicated issues, but they did not apply to Phillips’s decision that he would not create a cake for the couple.
‘‘All he knew was that they were gay,’’ Cole said.
Several of the liberal justices questioned what other types of business owners would be exempt if the court made an exception for Phillips. ‘‘Who else is an artist?’’ asked Justice Ruth Bader Ginsburg. What about a hair stylist, a chef, or a makeup artist, asked Justice Elena Kagan.
Phillips’s attorney, Kristen K. Waggoner, distinguished between the baker’s highly-stylized, sculpted creations and the services provided by other professions that she said were ‘‘not speech.’’
‘‘Some people might say that about cakes,’’ responded Kagan.
The Trump administration filed a brief on behalf of Phillips; supporters of the couple said it was the first time the government has argued for an exemption to an antidiscrimination law.
But the government agreed with Phillips that his cakes are a form of expression and that he cannot be compelled to use his talents for something that he does not support.
Noel J. Francisco, the US solicitor general representing the Trump administration, told the court Tuesday that the exemption should apply only to a narrow category of business owners who should not be forced to create or contribute to an event they disagree with on the basis of their religious beliefs.
He repeatedly used as an analogy an African-American artist, who he said should not be compelled to sculpt a cross that would be used for a Ku Klux Klan service.
Scattered across the country, florists, bakers, photographers, and others have claimed that being forced to offer their wedding services to same-sex couples violates their rights.
Courts have routinely turned down the business owners, saying that state antidiscrimination laws require businesses that are open to the public to treat all potential customers equally.
