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Kagan synthesized the these scenarios into three "axes" of questioning, each one exploring how ruling for the baker opens further questions in a different direction.
On the other side, the ACLU and Colorado argue that public accommodations laws are “content-neutral” and should apply to everyone — no exceptions.
For his part, Kennedy expressed discomfort with the idea that broad consequences could flow from a decision in favor of the baker, effectively watering down the exercise of the marriage right established in 2015’s Obergefell v. At the same time, he later also called it “too facile” to suggest that all opposition to same-sex couples’ marriages should be considered anti-gay discrimination.
"The primary purpose of a food of any kind is to be eaten," she said.
"There are sandwich artists," she said, but a sandwich-maker does't claim to create a First Amendment-protected lunch.
Masterpiece Cakeshop and the US government pointed to a different case — the 1995 decision that allowed a private group to ban a gay contingent from its St. Suggesting that the case is "the flip side" of the parade case, US Solicitor General Noel Francisco said, “We don’t think you can force a speaker to join the parade.”That question ultimately could decide the case: Is baking a cake participating in the wedding in a way that sends a message — equivalent to marching in the parade — or not? He responded to Francisco’s argument: “No one is suggesting that the baker has to march in the parade,” and adding that, by way of example, “No one thinks the baker is wishing [someone] happy birthday” when a person buys a birthday cake. It's the makeup artist."Waggoner said she was not aiming to encompass the work of stylists as protected speech, but the baker's recusal should be protected."I'm quite serious, actually, about this," Kagan responded, echoing a sentiment from the court's more liberal justices who had joined Kennedy in ruling for same-sex couples in 2015 that it would be difficult to corral a ruling for Masterpiece Cakeshop in such a way that it doesn't allow creeping forms of discrimination.
As Kennedy sought out answers to his questions — often focused on the dignity of people on both sides of the case — his colleagues pressed the lawyers on scenarios that could be affected by the eventual decision in Tuesday’s case. She raised the possibility of a tailor or a chef who, saying their work is artistic, might wish to refuse to fit a dress or craft a meal for a same-sex couple's event.Looking at the range of potential exemptions to nondiscrimination laws that could be argued for under a ruling for the baker, Kennedy mused at one point, "It means that there's basically an ability to boycott gay marriages." On the other side, though, the justice expressed concern to Colorado Solicitor General Frederick Yarger about whether Colorado and the commission have shown “hostility to religion” based on their actions — a detour picked up by Kennedy’s more conservative colleagues.“Tolerance is most meaningful when it’s mutual,” Kennedy said pointedly to Yarger, who responded that the legislative record for Colorado’s public accommodations law shows that Colorado spent significant time considering the legislation and the views of religious people before passage, including an exemption for places of worship.When Kennedy questioned whether opposition to same-sex couples’ marriages could always be considered a type of sexual orientation discrimination, the ACLU’s David Cole responded that the court had faced a similar question in a 1983 case relating to Bob Jones University’s then-existing ban on interracial dating or marriage.When Kristen Waggoner, the lawyer for Masterpiece Cakeshop, said that she was not arguing for a decision that would allow a baker to ban a gay couple from purchasing an off-the-shelf cake, Kennedy pressed her on the point and asked why not? "The question was the first of many about the difficult line-drawing that would be involved in any decision favoring the baker.Waggoner answered that such a situation wouldn’t be covered because “his speech has been completed” in that situation before the customer appeared — but other hypotheticals about who would be exempted from the antidiscrimination law and the extent of the exemption led to less definitive answers.He twice invoked a possible Catholic legal assistance firm, asking if such a group — which generally provides legal support that isn’t religious in nature — should still, then, be required to violate its beliefs by assisting a same-sex couple.