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Supreme Court appears skeptical of Colorado baker’s refusal to make cake for gay couple

December 6, 2017 GMT

WASHINGTON — The Supreme Court gave a mostly skeptical hearing Tuesday to a Colorado baker’s claim that he had a free-speech right to refuse to make a wedding cake for a same-sex couple.

What about a jeweler? A hair stylist? A make-up artist, asked Justice Elena Kagan. “How do you the draw the line?”

She and other justices said they did not see how the court could set a legal rule that would allow some business people, but not others, to refuse to serve all customers.

Justice Anthony M. Kennedy said it would be “an affront to the gay community” if a baker or other business person could advertise that they do not serve gays and lesbians.

Most of the justices signaled they were reluctant to rule that a business person, like the owner of the Masterpiece Cakeshop in Lakewood, Colorado, had a free-speech right to refuse to make a wedding cake for a same-sex couple.

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ACLU attorney David Cole said the baker had turned away the two men based on who they were, not the message they wanted on a wedding cake. “The only thing the baker knew was the identity of the customer,” he told the justices.

But the argument went back and forth and was not one-sided. Chief Justice John Roberts and Justice Samuel Alito said they were troubled by what they saw as religious discrimination against the Christian baker.

At one point, Kennedy appeared to agree. “Tolerance is essential in a free society,” he said, and the state civil rights commission “has not been tolerant and respectful of Mr. Phillips,” he said, referring to Jack Phillips, the baker who brought the case.

The justices were weighing a clash between gay rights and religious liberty Tuesday and will have to decide whether a Colorado baker can rely on his Christian beliefs and the 1st Amendment as a reason for refusing to make a wedding cake for a same-sex couple.