Cake goes to court

OCTOBER 2017 TERM

As fires consumed the outskirts of the Los Angeles basin fueled by strong Santa Anas, religious fervor heated up Tuesday morning's U.S. Supreme Court argument. The case involves a Colorado baker, Jack Phillips, who refused to sell a wedding reception cake to a gay couple, Charlie Craig and Dave Mullins. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 16-111. The court, unsurprisingly, seems divided.

Justice Anthony Kennedy, known as the court's swing vote, tossed out a morsel that gave both sides something to chew on. "Tolerance needs to work both ways," he said. Court watchers suggest that Kennedy was expressing concern that, in the proceedings below, the Colorado Civil Rights Commission (and the Colorado courts) had not been "tolerant or respectful" of the baker's views and that the commission had demonstrated "religious hostility."

Justice Kennedy seemed fixated by one commissioner's comment that, "people use their religion to hurt others." Kennedy's concern for the rights of the religious was echoed by one of the baker's lawyers, Kristen Waggoner, when she announced, in a recap after the argument on the steps of the Supreme Court, that "dignity cuts both ways."

The questions asked during argument are not always predictive of the outcome, but Justice Kennedy's comments show that this is no slam-dunk for the cause of the gay couple, and the principles of anti-discrimination. It seems the baker's lawyers succeeded in framing this issue as one about the "dignity" of the baker and his sincerely held religious beliefs, not just about the equality and dignity rights of the Colorado couple.

Four lawyers argued the case, which was scheduled for an hour but ran over 80 minutes, with two lawyers arguing on behalf of the baker-petitioner. First up was Waggoner, from the Christian-religious-rights law firm, Alliance Defending Freedom (the team that successfully argued for Hobby Lobby's religious exemption from the birth control mandate of the Affordable Care Act in Burwell v. Hobby Lobby). Next up was U.S. Solicitor General Noel Francisco, who argued in support of the religious liberty rights of the baker. (In September, the federal government filed a brief in support of the baker arguing that the government has "a substantial interest in the preservation of [the] constitutional rights of free expression" and taking the position that discrimination against gays is not the same as racial discrimination, and should not have the same heightened constitutional protection.)

After the baker's side, Colorado Solicitor General Frederick Yarger took some heat, followed by D.C. ACLU Legal Director David Cole, representing the Colorado couple. The rebuttal argument was delivered by the baker's lawyer who urged the court to reverse the Colorado court's decision which required the baker, inter alia, to make wedding cakes for straight and gay couples alike.

The Alliance Defending Freedom and the federal government focused on the argument that the baker's free exercise rights and free speech rights were being constitutionally infringed upon by the application of Colorado's anti-discrimination law. The baker, they claim, is an artist whose medium is cake, and he cannot be constitutionally compelled to create "art" in violation of his religious beliefs. In fact, many in the "baked-goods-are-art" movement agreed. A significant number of the over 100 friend-of-the court briefs were from other "culinary artists," predominantly bakers, with most asserting that cake-making is expressive speech and that other artists-artisans who "create" should be exempted from public accommodations statutes requiring service to all.

And although there was nothing in the record about the type of cake the couple sought to order (they were refused by the baker before they could discuss any type of cake flavor or design) Waggoner, the baker's lawyer, injected "extra-record" commentary about some "folder" brought to the store by the couple which contained all kinds of designs the couple wanted, including a "rainbow-layered cake." Waggoner suggested that because the couple ultimately received a "free rainbow-layered cake" from another vendor, the cake the couple would have requested of the Masterpiece Cakeshop was "certainly expression."

Francisco, the U.S. solicitor general, told the justices that ruling for the baker would not be problematic to public accommodation laws since it would be applied only to a "narrow group" in "narrow circumstances." He even supported the idea that the baker be permitted to put a sign in his window alerting retail customers that he does not make "custom cakes for same-sex couples."

The justices posed myriad questions about who would be covered in such a narrow exception in the commercial marketplace, and would that include, to name a few, tailors, jewelers, chefs, make-up artists, hair stylists, florists, architects, sandwich makers, and restaurants. They inquired how a food product could be considered "speech of the food preparer," with Justice Sonia Sotomayor referencing one of the amicus briefs from a pastry chef in which the chef prepared a cake at the behest of a client with the words "I'm sorry for what I did." (Evidently for a husband apologizing to his wife.) Sotomayor mused about how one could consider the apology to be that of the baker's.

The couple's lawyer, Cole, tried to steer the court back to the idea that prohibiting discrimination on the basis of one's identity in public accommodations is a compelling state interest and unrelated to the suppression of ideas. He urged the court not to "carve out some religious exception" to generally applicable rules that regulate conduct in a "content-neutral way." He entreated the court to consider the ramifications of a contrary decision, "otherwise we [will] live in a society in which businesses will put up signs saying we serve whites only, music lessons for Muslims need not apply [and] passport photos [here but] not for the disabled."

During her rebuttal, Waggoner intoned that while "political, religious and moral opinions shift," the court's dedication to the First Amendment should not. Sotomayor countered that, "America's reaction to mixed marriages and to race" did not change on its own. She explained that the nation's views changed "because [of] public accommodation laws that forced people to do things that many claimed were against their expressive rights and against their religious rights."

The last comment by Justice Kennedy occurred during Cole's arguments when Kennedy seemed to adopt the baker's claim that the baker was not against gay people, but just against gay marriage. Kennedy declared that the baker was not discriminating because of the couples' "identity"; it's just that [the baker] has an objection to "what they're doing."

The import of those words is stunning. How could Justice Kennedy -- the "Columbus" of America's gay rights jurisprudence, who authored the Kennedy "quartet" (Rohmer, Lawrence, Windsor and Obergefeld), which blanket homosexual/LGBT Americans in the "constellation" of the protections of the Constitution -- permit the baker to discriminate based on marriage, and suggest that identity (an immutable characteristic) is separate from marriage? The current advancement of equality for gay rights is in large measure due to Kennedy's "principled view" of the Constitution. And because of his quartet, gay individuals can marry and are legally afforded the benefits of marriage from the private sphere elements of sexual intimacy to the government functionary aspects.

Masterpiece is our (figurative and literal) modern day 1967 Loving case, and by next June we will know whether Justice Kennedy's reliance on the application of fairness, equity and dignity, will prevail. This case, which pits religious freedom and free speech against an application of public accommodation laws, will force Justice Kennedy to choose among conflicting constitutional values he holds dear, specifically inclusion and liberty or religious freedom. The Cake case will either be a capstone in Justice Kennedy's legacy -- turning the quartet of inclusion cases into a "Kennedy quintet" -- or it will show just how powerful, normative and pervasive religious rights have become in this era.