Cake dispute turns into highly visible First Amendment religious football

10/6/2017, 11:31 a.m.
Sometimes a wedding cake is just delicious. And sometimes it is a First Amendment football. In the U.S. Supreme Court’s ...

The couple have precedents on their side, too. They highlight one 50-year-old case where a South Carolina restaurant argued it could turn away African-American customers because its owner had a religious objection to mixing races. The owner claimed its barbecue sauce was a form of artistic expression. He lost.

Former U.S. Solicitor General Gregory Garre commended Mr. Phillips’ lawyers for “an effective job of converting a gay marriage case into a test of free speech.”

“But on the other side,” he told NPR, “is a very exceptionally compelling narrative of our history as a society, the public accommodations law, sort of the crown jewels of the Supreme Court’s civil rights decisions.”

What to watch for?

All eyes should be on Justice Anthony Kennedy. At 81, Justice Kennedy is the longest serving, second oldest justice on the court and is a conservative — except when he’s not.

Justice Kennedy has sided with the court’s more liberal justices on several landmark cases, as he did in Obergefell v. Hodges, the 2015 decision that made same-sex marriage the law of the land. But he also sided with the conservative judges in Burwell v. Hobby Lobby, a ruling that the Christian-owned chain of craft stores could deny contraception coverage in its employee health care package.

Several of Justice Kennedy’s law clerks have speculated that he will soon retire and may be mindful of his legacy. 

“This is a case where we are likely to have a court of one: Justice Kennedy,” Mr. Garre said.

The Supreme Court likely will hear oral arguments in The Cake Case in December and issue a decision by June.