Mixed bag of arguments in Supreme Court cakeshop case
The U.S. Supreme Court concluded arguments Dec. 5 in the Masterpiece Cakeshop case with no clear indication of whether it would rule, as swing-vote U.S. Associate Justice Anthony Kennedy expressed skepticism of the Colorado nondiscrimination law, but also sent conflicting messages.
As the American Civil Liberties Union’s national legal director David Cole argued before the bench, Kennedy remarked the attorney’s claim the baker, Jack Phillips, denied a wedding cake to the same-sex couple based on their identity, rather than objections to same-sex marriage, was “just too facile.”
Kennedy also maintained “tolerance is essential” in society and accused the Colorado Civil Rights Commission of being “neither tolerant, nor respectful of Phillips’ religious beliefs,” noting a line in commission’s ruling calling the baker “despicable.” Kennedy also mentioned “other good bakery shops that were available.”
But Kennedy also questioned whether denial of wedding cake compromised the dignity of the couple — a principle of significant importance to the justice — and questioned why selling ready-made cake to a couple wouldn’t be speech as opposed to custom cake. Kennedy also envisioned after a ruling in favor of the baker religious groups sending messages to bakeries to “not make cakes for gay weddings.”
Making cake an artistic act?
In the aftermath of the hearing, reporters in the Supreme Court press room speculated the Court could rule by remanding the case to the Colorado Civil Rights Commission with instructions to be more tolerant of Phillips’ religious beliefs. Another possibility was a ruling specifically crafted to apply to Colorado’s nondiscrimination law without
December 8, 2017
The petitioner in the case, Phillips, argues that making a wedding cake is inherently an artistic act of expression protected under the First Amendment, therefore he should be able to deny wedding cakes out of religious objections to same-sex couples like Charlie Craig and David Mullins, who sought to buy a cake for their wedding in 2012.
The Colorado Civil Rights Commission determined Phillips’ denial of service to the couple amounted to unlawful anti-gay discrimination under the Colorado Anti-Discrimination Act. Although state courts have affirmed that ruling, the Supreme Court agreed to take up the case earlier this year.
U.S. Associate Justices Elena Kagan and Sonia Sotomayor, the Obama-appointed justices, made the strongest case for the Colorado nondiscrimination law and at times were seemingly trying to coax Kennedy, who has a long history of ruling in favor of LGBT rights, to side with the same-sex couple.
When Kristen Waggoner, senior vice president of U.S. advocacy for the law firm Alliance Defending Freedom, approached the issue of dignity by saying “in this case, dignity cuts both ways” and the Colorado law is demeaning to Phillips, Sotomayor shot back that that wasn’t the case.
“It’s not denigrating someone by saying, as I mentioned earlier, to say: If you choose to participate in our community in a public way, your choice, you can choose to sell cakes or not,” Sotomayor said. “You can choose to sell cupcakes or not, whatever it is you choose to sell, you have to sell it to everyone who knocks on your door, if you open your door to everyone.”
Asserting society has “competing beliefs,” Sotomayor recognized LGBT people “have been humiliated, disrespected, treated unequally” and enumerated the history of discrimination against them, such as LGBT people being denied medical treatment. That history, Sotomoyor said, justifies a nondiscrimination law in public accommodations.
“We’ve always said in our public accommodations law we can’t change your private beliefs, we can’t compel you to like these people, we can’t compel you to bring them into your home, but if you want to be a part of our community, of our civic community, there’s certain behavior, conduct you can’t engage in,” Sotomayor said. “And that includes not selling products that you sell to everyone else to people simply because of their either race, religion, national origin, gender, and in this case sexual orientation.”
Kagan peppered Waggoner with questions on why wedding cake would be considered inherent, but not other wedding services such as jeweler or a hair stylist. Waggoner said neither of those cases would be the same as a wedding cake because they’re not speech.
“I’m quite serious, actually, about this, because, you know, a makeup artist, I think, might feel exactly as your client does, that they’re doing something that’s of great aesthetic importance to the wedding and that there’s a lot of skill and artistic vision that goes into making a somebody look beautiful,” Kagan said.
In one telling moment when Kagan enumerated other professions and brought up chefs, Waggoner denied a chef at a wedding was engaged in expressive speech, prompting Kagan to say “woah” in disbelief.
“The test that this court has used in the past to determine whether speech is engaged in is to ask if it is communicating something, and if whatever is being communicated, the medium used is similar to other mediums that this court has protected,” Waggoner replied.
There was little time for attorneys to make their cases before the Supreme Court without interruption as justices continually peppered with inquiries and challenged, but on occasion were able to make the points they had prepared.
Cole, representing the American Civil Liberties Union and the same-sex couple, emphasized the far-reaching implications of ruling in favor of being allowed to deny wedding cases to LGBT people.
“We don’t doubt the sincerity of Mr. Phillips’s convictions, but to accept his argument leads to unacceptable consequences,” Cole said. “A bakery could refuse to sell a birthday cake to a black family if it objected to celebrating black lives. A corporate photography studio could refuse to take pictures of female CEOs if it believed that a woman’s place is in the home. And a florist could put a sign up on her storefront saying we don’t do gay funerals, if she objected to memorializing gay people.”
By CHRIS JOHNSON, WASHINGTON BLADE