[Editors’ Note: Friend of the blog Justin Burnam got into the oral argument for Masterpiece Cakeshop yesterday. We’re pleased to be able to host him here for his reflections.]

The Supreme Court yesterday heard oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Outside the courthouse, two energetic crowds—each replete with signs, flags, and booming sound systems—filled the air with competing chants and cheers. Inside, as Chief Justice Roberts admitted new lawyers to the Supreme Court bar before inviting counsel for Jack Phillips to begin her argument, Justice Kennedy sat in silence, resting his head in one hand. As with many headline-grabbing cases, commentators have predicted that Kennedy will cast the decisive vote in Masterpiece due to a predictable split between his colleagues. Yet Masterpiece, possibly more than any other case, places Kennedy between a rock and a hard place. As both a stalwart defender of free speech and the author of the Obergefell majority opinion, Kennedy has defended the interests on both sides of Masterpiece with equal force. But by the end of the argument, it seemed clear that Kennedy does not think of this case in those binary terms. Rather, he’s also exploring a third category that commentators had mostly dismissed as an afterthought: The Free Exercise Clause.

Cake artist Jack Phillips declined to create a custom same-sex wedding cake in 2012. The couple who requested the cake, Charlie Craig and David Mullins, brought a claim against Phillips in the Colorado Civil Rights Commission. The Commission ruled that Phillips violated Colorado’s Anti-Discrimination Act (CADA), rejecting Phillips’ argument that he objected not to the couple’s sexual orientations, but only to creating expression contrary to his deeply held religious beliefs about marriage. The Commission ordered Phillips to make same-sex wedding cakes or else cease making wedding cakes altogether. It also ordered him to report all orders he declined on a quarterly basis, and to train his staff regarding CADA’s requirements. The Colorado Court of Appeals upheld the order, the Colorado Supreme Court declined review, and the Supreme Court of the United States granted certiorari on the question of whether the Commission’s order violated the First Amendment by compelling Phillips’ speech or burdening the free exercise of his religion.

If Phillips’ wedding cakes count as speech, ruling either way on speech grounds creates a limiting principle problem—as demonstrated by the sharp hypotheticals that the lawyers on each side knew to expect from yesterday’s argument. Phillips’ attorney, Kristen Waggoner, argued that the government cannot compel speech by requiring people to create custom art in violation of their convictions. She was bound to get a hard hypothetical about a sincere baker turning down a cake for an interracial wedding, and Justice Kagan obliged. Waggoner responded that the Court has never upheld compelled speech in the race context, but that it might justify compelling speech in that context with a compelling interest.

Solicitor General for Colorado, Frederick Yarger, and the couple’s attorney, David Cole, argued that businesses open to the public cannot create custom goods for some but not others. They had their own hard hypotheticals to answer. Yarger had to answer whether Colorado would require a Catholic Legal Services group to litigate Masterpiece against Mr. Phillips because the group handled other wedding-related legal matters, and Cole had to answer whether a baker would have to create a red cross cake for a religious group advocating the KKK’s beliefs because the baker had previously created the same cake for a humanitarian group. Both ultimately answered “yes.” Regardless of which side the Court takes on the speech question, it may have to swallow a bitter hypothetical: either a baker can refuse an interracial marriage cake, or the Government can force him to make a KKK cross cake.

Justice Kennedy’s questions revealed concern about both outcomes. Kennedy asked Solicitor General Yarger to consider that the Commission’s order required Phillips to tell his family that state law supersedes his religious faith. But Kennedy also asked United States Solicitor General Noel Francisco if allowing bakers to post signs indicating refusal to bake gay wedding cakes would be an affront to the gay community.

If Phillips’ custom wedding cakes count as speech, then resolving Phillips’ speech claim drives Kennedy into one line of hypotheticals or the other. Kennedy could avoid both consequences if he decided that Phillips’ cakes aren’t speech. But although Justices Kagan and Breyer pushed Phillips’ attorneys on the cake’s expressive status, Justice Kennedy seemed likely to view many wedding-related artistic products as speech. Addressing Solicitor Francisco, Kennedy observed that “the problem for you is that so many of these [wedding-related] examples—and a photographer can be included—do involve speech.”

Phillips’ free exercise claim may provide a way of disposing of this case without treading into either minefield. This claim likely received less attention in Masterpiece due to the difficult standard Phillips would have to meet: Since Employment Division v. Smith in 1990, free exercise challenges to otherwise valid, neutral, and generally applicable laws receive only rational basis scrutiny.[1] But after Chief Justice Roberts posed the Catholic Legal Services hypothetical to Solicitor Yarger, Justice Kennedy took the opportunity to press Yarger on Colorado’s treatment of Phillips’ religious objection. Kennedy quoted a commissioner’s statement from the record: “freedom of religion used to justify discrimination is a despicable piece of rhetoric.” He then pointedly asked Yarger: “Did the Commission ever disavow or disapprove of that statement? Do you disavow or disapprove of that statement?” Not satisfied with Yarger’s answer, Kennedy pressed him again: “Do you now disavow or disapprove of that statement?”

The statement Kennedy referenced occurred at Phillips’ hearing before the Commission, and Phillips’ attorneys excerpted it in his briefing before the Supreme Court:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be – I mean, we – we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.

Under a free exercise analysis, this statement could indicate that the Commission failed to treat Phillips neutrally—propelling his case out of Smith rational basis scrutiny and up into strict scrutiny. Though neither party contests that CADA treats religion with facial neutrality, the Court has previously looked beyond facial neutrality—most notably, only three years after Smith in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.[2] Justice Kennedy wrote the opinion.

Lukumi held that a city ordinance prohibiting ritual animal sacrifice violated the Free Exercise Clause by targeting a religious practice of the Santeria religion for disfavored treatment. The Court determined that the ordinance’s language of “ritual” and “sacrifice,” though religious in origin, did not necessarily establish facial religious discrimination because the words also have secular meanings. Writing for the majority, Justice Kennedy explicitly rejected the city’s argument that the Court’s “inquiry must end with the text of the laws at issue.”[3] Rather, he reasoned that “[t]he Free Exercise Clause . . . extends beyond facial discrimination,” forbidding “subtle departures from neutrality” and “covert suppression of particular religious beliefs.”[4] When Ms. Waggoner reiterated Phillips’ free exercise claim in her rebuttal, she pointed the Court to Professor Douglas Laycock’s amicus brief. Laycock, a prominent free exercise scholar, successfully argued Lukumi. Justice Kennedy picked up his pencil and wrote something down.

As in Lukumi, Justice Kennedy may be on the lookout for “government hostility which is masked, as well as overt.”[5] After asking whether Solicitor Yarger disavowed the Commissioner’s statement, Kennedy continued sounding Lukumi notes: “Suppose we thought that in significant part at least one member of the Commission based the commissioner’s decision on . . . hostility to religion. . . . Could your judgment then stand?” The Court could dispose of Masterpiece on Lukumi grounds by deciding that the Commission treated Phillips with hostility, but doing so would only kick the free speech can further down the road until the Court hears a factually similar case that raises no Lukumi-like indicia of hostility.

Beyond facial discrimination, Lukumi determined that “a pattern of exemptions” can indicate impermissible targeting of religion.[6] That’s where the argument went next, when Justice Alito pointed out that the Commission had let other bakers decline a Christian customer’s request for cakes opposing same-sex marriage. While the Commission permitted these bakers to decline orders with offensive messages, the Commission rejected Mr. Phillips’ similar message-based rationale as identity-based discrimination. When Mr. Cole made a similar identity-based discrimination argument to answer Justice Gorsuch’s red cross hypothetical, Justice Kennedy pushed back, hypothesizing that a baker may say “look, I have nothing against gay people . . . but I just don’t think they should have a marriage because that’s contrary to my beliefs.” Apparently unsatisfied, Kennedy remarked to Cole that “your identity thing is just too facile.” If the Commission’s reasoning for treating Phillips’ objection differently breaks down, its exemption of other bakeries may start looking like the exemptions for non-religious animal killings in Lukumi.

The Lukumi Court also supported its conclusion by observing that the city’s ritual sacrifice prohibition required evaluating the reason for each animal killing. Before Smith, such “individualized governmental assessment of the reasons for the relevant conduct” required strict scrutiny.[7] Indeed, Smith defended its rational basis standard by confining prior cases applying strict scrutiny to their employment compensation context, which “lent itself” to individualized assessment.[8] Justice Kennedy may be exploring whether, as he found in Lukumi, the Commission’s application of CADA “devalues religious reasons . . . by judging them to be of lesser import than nonreligious reasons.”[9] That said, Kennedy’s remarks do not necessarily establish that the Commission engaged in Lukumi-level targeting. Unlike the facial cues of “ritual” and “sacrifice” in Lukumi, CADA is neutral on its face. Further, Lukumi left open the possibility that governments can justify laws adversely impacting religion with “legitimate concern” about “a social harm.”[10] The Court may find that CADA’s anti-discrimination purposes justify its adverse effect on Phillips, or that the Commission’s distinctions hold water.

After Justice Alito pressed Solicitor Yarger on the Commission’s finding that Phillips objected based on customer identity while other bakeries objected based on message, Justice Kennedy made perhaps his most telling comment:

Counselor, tolerance 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’ religious beliefs.

If Kennedy suspects the Commission of hostility, he may prefer Lukumi’s free exercise framework to the unappetizing hypotheticals standing spectrally on either side of Phillips’ speech claim.

Whether intentionally or not, the baker in one of Justice Kennedy’s hypotheticals sounds a lot like Justice Kennedy—and Kennedy’s slip of saying “case” instead of “cake” (before settling on “cake and case”) when outlining the hypothetical makes the comparison irresistible. The hypothetical involved a “very complex” case—er, cake—that required the baker’s physical presence at the wedding to “cut it in the right place [so] the thing doesn’t collapse.” Judging from yesterday’s argument, Justice Kennedy seems averse to compelling speech but also averse to harming both the gay community and the population of religious believers he recognized in Obergefell as “reasonable and sincere people.”[11] Kennedy’s complex cake could collapse in any of these three directions, but maybe he thinks the Lukumi approach just might cut it.

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[1] See Emp. Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990).

[2] 508 U.S. 520 (1993).

[3] Id. at 534.

[4] Id. (internal citations omitted).

[5] Id.

[6] Id. at 536.

[7] Id. at 537 (quoting Smith, 494 U.S. at 884).

[8] Smith, 494 U.S. at 884.

[9] Lukumi, 508 U.S. at 537.

[10] Id. at 535.

[11] Obergefell v. Hodges, 135 S. Ct. 2584, 2594 (2015).