Supreme Court Swing Vote Kennedy Likely Supports Christian Baker in Gay Wedding Case, Says Attorney

Baker Jack Phillips speaks with the media following oral arguments in the Masterpiece Cakeshop vs. Colorado Civil Rights Commission case at the Supreme Court in Washington, U.S., December 5, 2017.
Baker Jack Phillips speaks with the media following oral arguments in the Masterpiece Cakeshop vs. Colorado Civil Rights Commission case at the Supreme Court in Washington, U.S., December 5, 2017. | (Photo: REUTERS/Aaron P. Bernstein)

United States Supreme Court Justice Anthony Kennedy seemed to accept the arguments of Colorado baker Jack Phillips in a case involving religious freedom and gay wedding cakes, according to an attorney involved in the case.

The Supreme Court heard oral arguments Tuesday in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, setting the stage for a major legal struggle on the question of religious liberty and LGBT rights.

Phillips, the owner of Masterpiece Cakeshop, was represented by the Alliance Defending Freedom, a conservative law firm known to handle religious liberty cases.

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Jonathan Scruggs, an ADF attorney who helped with the case, told The Christian Post that he felt that oral arguments "went well" and that the judges, including Justice Kennedy, "seemed very open to many of our arguments."

"Kennedy seemed to really hit the nail on the head talking about the importance of tolerance being essential in a free society and tolerance is most meaningful when its mutual," recalled Scruggs.

"It did not seem to him that the state was being tolerant of Mr. Phillips' religious beliefs. That is a pretty compelling statement."

During oral arguments, Kennedy said, "tolerance is essential in a free society. And tolerance is most meaningful when it's mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs." 

In 2012, Jack Phillips of Masterpiece Cakeshop, Inc. refused to make a same-sex wedding cake due to it violating his sincerely held religious beliefs.

In 2014, the Colorado Civil Rights Commission found him guilty of discrimination, claiming that he violated Colorado's Anti-Discrimination Act, or CADA.

The Commission ordered Phillips to undergo sensitivity training and provide the Commission with updates on any cake orders he refused to take, providing an explanation for this reasoning.

In August 2015, the Colorado Court of Appeals sided with the Civil Rights Commission, prompting Phillips to file a petition for appeal with the state supreme court last October.

The Colorado Supreme Court refused to hear Phillips' appeal, prompting an appeal to the U.S. Supreme Court in July 2016, which was granted in June.

Former Southern Baptist Convention President Ronnie Floyd told CP in an earlier interview that he feared a ruling against Phillips could set a negative precedent on religious freedom rights.

"It could compel Catholic doctors to perform abortions or force Catholic adoptions services to place children with same-sex couples," said Floyd, who currently serves as president of the National Day of Prayer Task Force.

"I think that is the far-reaching issue, whether it is Catholic or it's evangelical — those of us who have a deep belief in religious liberty and the sanctity of human life and those kind of matters. Where does it stop? That is extremely frightening."

The New York Times reported that Kennedy, who is often a swing vote on controversial cases, seemed to send "sharply contradictory messages" on where he would fall.

"Justice Kennedy looked troubled and said the administration's position was an affront to the dignity of gay couples," reported the Times.

"Later, though, Justice Kennedy said that a state civil rights commission that had ruled against the baker had 'neither been tolerant nor respectful of Mr. Phillips's religious beliefs.'"

Ian Millhiser, editor with the liberal site ThinkProgress who witnessed the arguments, struck a more pessimistic tone in a post on Twitter.

"Terrible argument for pro-equality side. Kennedy all but sure to side with anti-gay baker," tweeted Millhiser, getting over 800 likes in less than 12 hours.

"Kennedy appears to view Masterpiece Cakeshop as a case about animus against people of faith. There is a possibility of a narrow loss for Team Equally, but little chance of a victory."

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