U.S. Supreme Court Chief Justice John Roberts shot down comparisons between supporters of traditional marriage and racists during oral arguments Tuesday in a case involving Jack Phillips, a Christian baker, who refused to bake a wedding cake for a same-sex couple.
The comparison, according to Emilie Kao of The Heritage Foundation, was a “smear” — an attempt to divert the court away from the real issue: Phillips's disagreement with the state on the issue of marriage.
“[Chief Justice] Roberts appeared to recognize this when chiding the ACLU for lumping in supporters of traditional marriage with racists, noting that in Obergefell, the court had said support for traditional marriage is rooted in 'decent and honorable' premises,” wrote Emilie Kao for The Daily Signal.
The state of Colorado and the ACLU drew parallels between Jack Phillips's business and beliefs with shopkeepers in the Jim Crow South trying to keep races “separate but equal.”
“[Phillips] has served gays for the 24 years his store has been in operation and welcomes their business to this day. He does not discriminate against anybody because of their identity,” Kao explains.
During the oral arguments, the court seemed to recognize that Phillips does not discriminate on identity, but on the ceremony of marriage itself.
The exchange got heated at one point when Justice Anthony Kennedy asked Colorado Solicitor General Frederick Yarger if comparisons of Phillips to a Nazi and a racist from a member of the Colorado Civil Rights Commission displayed anti-religious bias. And if it does, should the commission's judgment against Phillips still stand.
Yarger disavowed the comments, but argued that the decision should still stand.
“[T]olerance 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’s religious beliefs," said Kennedy, believed to be the deciding vote in the case.
Kennedy also mentioned that Phillips's refusal to bake the cake did not prevent the couple from going elsewhere.
“Justice Samuel Alito pointed out that the state of Colorado had failed to demonstrate mutual tolerance when it only protected the freedom of cake artists who landed on one side of the gay marriage debate — namely, the state’s side,” writes Kao.
The comparisons of Phillips to a Nazi ultimately led to the admission from the Colorado solicitor general and ACLU attorney that the state could also force a baker “to celebrate the racist ideals of white supremacy, or one of the most infamous events in world history, the Holocaust.”
Liberal Justice Stephen Breyer followed up on a question from conservative Justice Neil Gorsuch asking if the state can compel a cake artist to create a cross-shaped cake for a religious group sharing the beliefs of the KKK.
David Cole, the lawyer representing the gay couple, responded that if the baker did so for the Red Cross, then yes, he would have to do so for the religious group as well.