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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.WASHINGTON — Justice Anthony Kennedy is again at the center of debate over a major case about gay rights, as a closely divided Supreme Court heard arguments over whether a Colorado baker can be forced under state antidiscrimination laws to provide a cake for a gay couple’s wedding.The baker, Jack Phillips, is a Christian who opposes same-sex couples’ marriages and refused to make a wedding cake for Charlie Craig and David Mullins, a gay couple.Nor, he said, should a gay opera singer be forced to perform for the notoriously anti-gay Westboro Baptist Church.
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.
Minutes into the argument, Justice Elena Kagan pondered whether a hair stylist, like a baker, is also creating expressive speech for a wedding that could be refused."Why is there no speech in creating a wonderful hairdo? Waggoner walked a fine line between saying she wanted a ruling for her client but not a decision that creates a slippery slope, thereby possibly eroding civil rights laws for other classes of people or protecting an endless type of service providers.
And yet, she sought a decision open-ended enough that other creative businesses that sell wedding services could turn away same-sex couples.
Justice Samuel Alito seemed to offer Waggoner an opening by suggesting that something functional that also has the artistry of fine architecture qualifies as expressive.
But Waggoner objected on that point, saying architecture didn't meet the bar.