Another take on Cake at the US high court

OCTOBER 2017 TERM

One of the fall’s most anticipated cases has an eponymous and invitingly delectable case name: Masterpiece Cakeshop. In Masterpiece, a soon-to-be-married couple — with one of the future mothers-in-law in tow — went into Masterpiece Cakeshop in Lakewood, Colo., to order a wedding reception cake. Lakewood, a bedroom community of Denver, is a town of almost 150,000 residents, has its own cultural center, and according to the town mayor, maintains a sign at the city’s outskirts announcing Lakewood: “building an inclusive community.”

The couple were admiring the cakes — and had not yet picked out or discussed any design — when the store owner, Jack Phillips, explained that he did not make cakes for gay weddings. The men, as the baker had rightly gleaned, were gay.

The threesome left the shop. The next day, the mother telephoned the baker and asked why he would not make the cake. His religious beliefs against gay marriage prevented him, he told her.

It took five years of various Colorado court proceedings — all finding that the baker had unlawfully discriminated and upholding the cease-and-desist order — for the case to make its way to the U.S. Supreme Court. In July 2016, the baker filed his writ of certiorari. The case could have been considered last term, but the Supreme Court, then with eight members, could not decide whether to hear the baker’s case. The case was relisted some 18 times.

This past June, the Supreme Court granted certiorari. It takes four justices to agree to hear a case so, with the addition of Neil Gorsuch, the Supreme Court had the fourth vote. The acceptance occurred just three days after the majority issued a three-page, per curiam decision in Pavan v. Smith. The court, relying on the gay marriage case of Obergefell v. Hodges, ordered Arkansas to issue birth certificates to all children born of married couples, in an identical way, including all born by artificial insemination — whether the parents were heterosexual or gay. Justice Gorsuch authored a caustic dissent — an exception to such pro forma decisions — joined by Justices Samuel Alito and Clarence Thomas, insisting that nothing in Obergefell “spoke to the question” of Arkansas’ birth certificates. Justice Gorsuch insisted, contrary to the majority, that Arkansas’ “birth registration regime” was “biology based.”

It is not a leap, based on Justice Gorsuch’s implicit reverence towards heterosexual family composition, to conclude that he voted to decide to hear the baker’s case.

The health of anti-discrimination law is tenuous. The administration has filed amicus briefs taking decidedly anti-inclusive positions. Two months ago, the Department of Justice argued — in a wrongful termination case involving a gay skydiver in the 2nd U.S. Circuit Court of Appeals — that the Civil Rights Act of 1964, does not cover sexual orientation. The Equal Employment Opportunity Commission, following its own 2015 guidelines, supported the skydiver. The DOJ’s response: The EEOC does not speak “for the United States.” No career prosecutors signed the brief, which was filed the same day as the president’s “no transgender military” tweet.

The DOJ, although not a party, jumped into the Colorado cake case. The acting solicitor general, a former Justice Thomas clerk, filed a 41-page brief supporting the baker’s religious rights. The brief states that “a wedding cake is not an ordinary baked good,” and that a baker, as an artist, should not be forced to “create” contrary to ideas of faith. No career DOJ employees signed that brief either.

The DOJ was contacted by so many news outlets, that it assigned a spokeswoman to recite this statement: “[a]lthough public accommodations laws serve important purposes, they — like other laws — must yield to ... individual freedoms ... [to] include the freedom not to create expression for ceremonies that violate one’s religious beliefs.”

The spotlight now is on the baker’s lawyers, Alliance Defending Freedom, the same group that successfully represented craft-store company Hobby Lobby, and convinced the high court 5-to-4, that a closely held corporation could deny female workers birth control insurance coverage given the owner’s religious beliefs.

However, it does not appear that Alliance took any part in the legal representation of Hobby Lobby when, this summer, the DOJ brought suit in New York accusing the company and its owner of black market international smuggling of thousands of religious artifacts. In early July, Hobby Lobby agreed to a $3 million fine and to the forfeiture of the smuggled artifacts.

In 2014, Alliance also represented New Mexico business owners who declined to photograph a lesbian commitment ceremony. In that case, the supremes (with Justice Antonin Scalia then-still alive) denied certiorari and Alliance currently represents a Washington state florist, for whom, in July, Alliance filed a certiorari petition stemming from the florist’s refusal to provide flowers for a gay wedding.

Alliance is no stranger to hyperbole. Its website states that “[a]cross the U.S., Christians are being punished for living by their convictions.” Alliance makes clear its mission: advocacy in winning the culture wars. From the website: “It is not enough to win cases, we must change the culture and the strategy of Alliance Defending Freedom ensures lasting victory.”

Alliance’s opening Supreme Court brief in the cake case shows they are clever wordsmiths taking First Amendment law and turning it on its head. They call the case a “hybrid” of “compelled expression” necessitating strict scrutiny review. Alliance uses the term “artist” 41 times, and 11 of those references are to “cake artist.” The introduction contains these words: “[The baker’s] love for art and design began at an early age,” .. [and] “[s]ince long before this case arose [the baker] has been an artist using cake as his canvas with [the bakeshop] as his studio.”

What is more troubling than Alliance’s constitutional creativity — as “hybrid” First Amendment claims have been relegated to the dicta-scrap heap — and is more disturbing than the lawyers degree of linguistic schmaltz, is Alliance’s inclusion, in their brief, of areas of inquiry, deemed inadmissible by prior judicial officers.

In the administrative case, Alliance asked the administrative law judge for discovery of the type of cake the couple would have ordered had they not quickly left the store and sought details about the couple’s wedding ceremony. The ALJ denied Alliance’s requests. The state appellate court affirmed the ALJ’s denial of discovery stating that “[e]vidence pertaining to …. [t]he wedding ceremony …. including the nature of the cake served — had no bearing on the legality” of the conduct.

Given this background, why did Alliance mention in its opening brief that the couple received “free-cake” from someone else and that “they had a multi-tiered rainbow-layered wedding cake at their reception”? And why, deep into the 300-plus pages of supporting documents provided by Alliance to the Supreme Court, were there two photographs of the couple’s wedding reception including one of them near the cake?

These sly moves coupled with other-extra judicial facts make the whole mix suspect. In July, just two months before the DOJ filed its brief on behalf of the baker, Attorney General Jeff Sessions traveled to the Laguna Niguel Ritz-Carlton and attended a closed-door, no-public-no-press “summit” hosted by Alliance.

To date, briefs — mostly in support of the baker by religious groups and other bakers replete with colored photographs of cakes — pour in and no news yet about scheduling.

So here’s where we are: The lineup of eight of the justices is pretty clear, 4-to-4.

And that leaves the deciding vote to Justice Anthony Kennedy. Although he authored the decisions of Lawrence, Windsor and Obergefell — he was also the fifth vote in Hobby Lobby denying women contraception. Justice Kennedy was also the fifth vote in the Boy Scouts case, where the court held that the private organization, could permissibly fire a scout leader because his sexual identity conflicted with the organization’s religious beliefs. And most recently, at the end of last term, Justice Kennedy voted with the majority in the Trinity Church case, a decision which enabled a Missouri church to receive public funds which had been barred by that state’s constitution.

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Constitutional conflicts oft-appear analogous with “driving a clutch” — one has to work both pedals with finesse so that the car will not stall out. We, guided by principled constitutionalism, must recognize other protected classes covered by the penumbra and constellations of rights emanating from our constitution. From 1967’s Loving v. Virginia, enshrining the unenumerated right to marriage, including interracial marriage, to the more recent Windsor and Obergefell cases establishing the right of same-sex couples to marry, we are letting out the “clutch” of even sincerely-held beliefs and prejudices.

For sure, initial acceleration may not be smooth, but as we found in the aptly named Loving case ― we ultimately get there. Justice Kennedy, let out the clutch, and place your foot ever so slightly on the gas. Let us continue with you on the road to inclusion.