Yesterday morning, I had the honor of attending oral argument before the United States Supreme Court.  The case being argued was Masterpiece Cakeshop v. Colorado Civil Rights Commission, commonly referred to as the "gay wedding cake case." 

The case involves a humble Christian baker, Jack Phillips, in the sleepy town of Lakewood, Colorado, who received a phone call one day to create a custom wedding cake for two men attempting to marry each other.  Phillips responded by inviting the couple to purchase any goods in his bakery while declining to create a custom cake for the celebration because his Christian values forbid him to promote an understanding of marriage that includes same-sex couples.  Five years, a plethora of fines and penalties from the State of Colorado, and several boycotts of his bakery later, the state is still forcing Phillips to make custom cakes for these same-sex celebrations, and Phillips finds himself fighting in the nation's highest court for his First Amendment freedoms of speech and religious exercise.  The couple who called Phillips ended up receiving their cake for free from a different baker.  The cake was a replica of the rainbow flag to celebrate the gay rights movement.

The case demonstrates the entanglement of public accommodation laws protecting sexual orientation and fundamental American freedoms.  Passions run skyscraper-high on both sides of the argument, but yesterday's oral argument began with a polite, quiet question from Justice Ginsburg trying to clarify whether it makes a difference that the cake at issue in the case was specifically commissioned for a wedding, so-called, and not purchased off the shelf.  A great deal of confusion followed.  Then Justices Kagan and Sotomayor administered a pop quiz, naming foods, art, buildings, and creative enterprises and demanding to know if the objects or general categories of study they posed are expression and, therefore, protected speech under the First Amendment.  At one point, Justice Thomas covered his face with his full palm at the incomplete responses and failures to get to the relevant.

The oral argument became coherent when the solicitor-general took the podium.  The solicitor-general framed the issue in the case: whether the state may compel business owners to express certain viewpoints – here, a viewpoint fundamentally against one's religious convictions. 

Justice Kennedy passionately demonstrated his support of gay rights and questioned whether ruling in Phillips's favor would allow shop owners to post signs in their windows such as "no gays allowed" or "no cakes for gay weddings."  Justice Breyer declared that ruling in Phillips's favor would create chaos to the principal and American value of non-discrimination.  The solicitor-general ended his argument by reminding the Court that prohibiting a state from forcing its citizens to adopt messages with which they fundamentally disagree is the very core of what the First Amendment protects.  It is at this point that hope for Phillips finally began to swell. 

Justice Roberts asked the attorney representing the Colorado Civil Rights Commission a hypothetical about whether Catholic Legal Services should be compelled to represent same-sex couples against their religious beliefs or if the legal group should be forced to close its doors.  The attorney skirted the question.  Justice Kennedy then rattled off sections from the record showing the commission's bias against Jack Phillips's sincerely held religious beliefs.  Then, in the most important moment of the argument, Justice Kennedy commented that Colorado has not been tolerant of Jack Phillips.

And there it is, the crux of the case: tolerance.  Should a state be tolerant of its citizens' religious beliefs?  May it disallow certain beliefs with which it disagrees, demanding that its citizens express antithetical beliefs or face punishment? 

The last attorney to speak brazenly began his argument with "We don't doubt the sincerity of Jack Phillips's religious convictions."  The attorney continued, however, with reasoning to the effect that those convictions should be violated in this case.  The attorney seemed unaware that he is advocating that Jack Phillips's religious beliefs be violated and condemned.  The attorney even argued that the state should force a baker to write on a cake "God bless" followed by the same-sex parties attempting to marry by name, regardless of whether such a statement violates the baker's personal convictions.  The statement shows that the state is directly targeting and compelling speech.

Justice Kennedy spoke to clarify the position set forth in his opinion in Obergefell v. Hodges, where the justice not only voted to legally redefine the nation's understanding of marriage, but wrote the 5-4 majority opinion.  Yesterday, however, Justice Kennedy questioned if a Christian person, who serves all sexual orientations and holds no animus whatsoever against people who characterize themselves by their attraction to members of the same sex, but who cannot create a cake or cooperate with two men or two women attempting to marry due to his sincerely held religious beliefs, can escape persecution from the state.

After observing the oral arguments, I believe that there are four votes yes (Justices Alito, Gorsuch, Thomas, and Roberts) and four votes no (Justices Sotomayor, Kagan, Ginsburg, and Breyer).  I am hoping for the sake of the freedoms enshrined in the First Amendment that Justice Kennedy casts the last "yes" vote in the case to tilt the scales in favor of something that Jack Phillips has not experienced in our judicial system – namely, tolerance.