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.
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.
Civil rights law in Colorado and 20 other states, including California, requires public businesses to serve all customers without regard to their sexual orientation.
Phillips says he gladly serves everyone who comes in, including gays and lesbians. But he says he draws a line at making a custom wedding cake for a same-sex marriage because doing so would conflict with biblical views.
The Colorado courts upheld the state's anti-discrimination law and ruled Phillips had no right to an exemption. The state had acted in response to a complaint from Charlie Craig and David Mullins, who were planning a wedding reception and were surprised when Phillips turned them away five years ago.
Phillips has continued to operate his bakeshop, but says he no longer designs custom cakes because he will not abide by the state's policy of equal treatment.
In June, the Supreme Court agreed to hear the baker's claim that designing a custom wedding cake involves expression. If so, forcing him to design a cake that violates his views conflicts with the freedom of speech protected by the 1st Amendment, his lawyers say.
The justices will not hear his separate claim that requiring him to make a custom cake violates his right to the "free exercise" of religion also protected by the 1st Amendment.
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