From the 1960s when first enacted by Congress, the laws against discrimination have been challenged as abridging First Amendment rights – both free exercise of religion and freedom of speech. The Supreme Court has balanced arguably competing interests and, by and large, upheld anti-discrimination laws. Such laws are being tested again in Masterpiece Cakeshop, Inc. v. Colorado Civil Rights Commission where a baker refused to sell a wedding cake to a same-sex couple to whose marriage he asserted religious objection. The issues to be decided by the Supreme Court include in what circumstances is commercial expression protected by the First Amendment and whether the balancing applied by the Court to a prohibition against sexual orientation discrimination will be less favorable than that applied to a prohibition against other types of discrimination.
The Supreme Court heard oral argument on December 5, 2017. As expected, Justice Anthony Kennedy, who expressed concern for the rights of both the couple and the baker, likely holds the deciding vote.