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Our coverage of Judge Brett Kavanaugh’s nomination to the Supreme Court is available at this link. Lines began forming outside the Supreme Court last week for one of the biggest oral arguments of the year, in the case of a Colorado man who says that requiring him to create custom cakes for same-sex weddings would violate his religious beliefs. The dispute before the Supreme Court today dates back to 2012, when Charlie Craig and David Mullins went to Masterpiece Cakeshop, a Denver-area bakery, to order a special cake to celebrate their upcoming marriage. But Jack Phillips, the owner of the bakery, refused to make them a cake. 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.
Although making predictions based on oral argument is always dangerous, it seemed very possible that there are five votes for Phillips among the court’s more conservative justices, even if it is less clear how broadly they will rule. Chief Justice John Roberts seemed to be squarely in Phillips’ corner. He asked Colorado Solicitor General Frederick Yarger, representing the state, whether Catholic Legal Services, which provides legal services to all different faiths, could refuse to take on a case involving same-sex marriage on the ground that it violated the group’s religious beliefs. Justice Samuel Alito also seemed to be on board with Phillips’ arguments.
He was concerned that, according to the state, another baker could decline to create cakes opposing same-sex marriage, but Phillips could not refuse to make a cake celebrating a same-sex marriage. Why wouldn’t the training be compelled speech, Gorsuch asked, when it would require Phillips to tell his staff that his Christian beliefs are discriminatory? For their part, the court’s four more liberal justices mostly seemed to side with the couple. Sotomayor was also worried that a ruling for Masterpiece would not only violate the dignity of same-sex couples, but could also cause real hardships.