If all seven members of the Supreme Court vote according to their past history, Associate Justice Anthony Kennedy will be the deciding vote in the Masterpiece Cakeshop religious liberty case.
He gave no definitive indication how he might decide during Tuesday’s oral arguments. In fact, observers in the courtroom said he “appeared conflicted” over the balance between protecting religious liberty and social justice warriors’ claims of human rights for homosexuals.
At one point, he grilled Solicitor General Noel Francisco, who argued in support of Denver baker Jack Phillips:
"If Mr. Phillips wins here, photographers, florists, graphic designers and even jewelers might likewise be able to refuse working on a same-sex wedding. It means that there’s basically an ability to boycott gay marriages. Does that mean they could put out a sign that says, 'We do not bake cakes for gay weddings'?"
Francisco said that would be permissible if Phillips wins. When Kennedy agrued that would be an “affront to the gay community,” the solicitor general noted “there are dignity interests on the other side here, too.”
Later, Kennedy blasted the Colorado Civil Rights Commission:
"It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs. Mr. Craig and Mr. Mullins easily could have been served by other good bakery shops that were available."
The court appears headed toward a 5-4 decision, one way or another. But, it could also remand the matter back to the Colorado Civil Rights Commission based on the inherent anti-Christian bias of one of its seven commissioners.