Mixed bag of ar­gu­ments in Supreme Court cakeshop case

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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

na­tion­wide im­pli­ca­tions.

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.”

Far-reach­ing im­pli­ca­tions

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.”


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