FAN 171 (First Amendment News) Masterpiece Cakeshop Case: Oral Argument Summary & Resources’ Roundup

The tone and nature of Kennedy’s questions suggest that he is inclined to rule for the baker. But his ruling would effectively still be a win for gay rights laws. Kennedy can hold that CADA itself — like hundreds of other civil rights protections — remains completely valid. But this particular proceeding, he might conclude, was infected by anti-religious bias.– Craig Konnoth, Wash. Post, Dec. 6, 2017

It appears there will be a closely divided court, and the majority will try to craft a narrow compromise between equal dignity and religious belief., — Roberta Kaplan, The Advocate, Dec. 6, 2017 

 

The information below consists of a topically organized set of excerpts from oral arguments in the Masterpiece cake case that was argued in the Suprme Court yesterday. Following that is a roundroup of recent articles.  

David Mullins & Charlie Craig (Washington Blade photo by Michael Key)

Counsel

  • Counsel for Petitioners: Kristen K. Waggoner
  • Counself for Amicus, supporting the Petitioners: Noel J. Francisco, Solicitor General, Dept. of Justice
  • Counsel for Private Respondents: David Cole, National ACLU
  • Counself for State Respondent: Frederick R. Yarger, Solicitor General, Denver, Colorado

Petitioner Jack Phillips (credit: Slate)

Excerpts from Oral Arguments 

Note: In the name of breveity, the excerpts that follow often leave out replies to the questions asked.

Premade Cakes 

Ginsburg: “What if it’s an item off the shelf? That is, they don’t commission a cake just for them but they walk into the shop, they see a lovely cake, and they say we’d like to purchase it for the celebration of our marriage tonight. The Colorado law would prohibit that. Would you claim that you are entitled to an exception?” (Trans.: pp. 4-5)

Kennedy: “[I]f you agree that it’s speech, then why can he not refuse to sell the cake that’s in the window according to Justice Ginsburg’s hypothetical?” (Trans.: p. 5)

Waggoner: “Well, in the context of if it’s already been placed in the stream of commerce in a public accommodation setting, his speech has been completed. . . .” (Trans.: p. 6)

Kennedy: “Suppose the couple goes in and sees the cake in the window and the cake has a biblical verse. Does he have to sell that cake?”  (Trans.: p. 8)

Kristen K. Waggoner for Petitioners

Roberts: “There’s no -­there’s no compulsion of speech, but if he is required to sell a cake in the window with the message already on it, that is compelling him to associate that message with the ceremony. And I thought that was something to which you objected.” (Trans. p. 9)

Kagan: “[A] couple comes in, a same-sex couple, and says it’s our first-year anniversary, and we would like a special cake for it. Can he then say no? No cake?” (Trans. p. 38)

Sotomayor: “Let’s assume this couple did come in and wanted the rainbow cake. . . . And this gentleman says one of two things: If you’re same-sex, I’m not going to provide you with a rainbow cake or I don’t create rainbow cakes for weddings because I don’t believe in same-sex marriage. I’m not going to sell it to you. I’m not going to sell it to a same — a heterosexual couple. I just don’t want to be affiliated with that concept of rainbowness at a wedding, any kind of wedding. . . . So what are the difference in treatment?”  (Trans. p. 61)

Yarger: “Justice Sotomayor, in that latter case, if that truly a product he wouldn’t sell to any other customer, he would not have to sell it to this customer. But if it’s a question of a cake he would sell to any other customer, he cannot say I have a very strong objection to interracial or interfaith marriages and I don’t want to send message about those — those events, and so I’m not going to sell it to you. That’s discrimination. It wouldn’t be appropriate under Colorado law, and it would be a First Amendment objection.” (Trans. p. 62)

Word Messages

Alito: “So if someone came in and said: I want a cake for — to celebrate our wedding anniversary, and I want it to say November 9, the best day in history, okay, sells them a cake. Somebody else comes in, wants exactly the same words on the cake, he says: Oh, is this your anniversary? He says: No, we’re going to have a party to celebrate Kristallnacht. He would have to do that?” (Trans. p. 68)

Expressive Conduct

Alito: “Are the words on the cake expressive conduct or are they not speech?” (Trans. p. 80)

David Cole for Private Respondents 

Cole: “Your Honor, that is regulated by Colorado here is not the words on the cake. The conduct that -­that Colorado regulates is the sale by a business that opens itself to the public, invites everybody in, it’s — it’s regulating the conduct of refusing a transaction . . . to somebody because of who they are.” (Trans. p. 80)

Cole: “It doesn’t matter whether it’s speech or whether it’s not speech.” (Trans. p. 80)

Alito: “But you just said, and I understand Mr. Yarger’s position for Colorado to be the same, is that someone can be compelled to write particular words with which that person strongly disagrees.”(Trans. p. 81)

Cole: “If he has written the same words for others, and the only difference is the identity of the customer, yes, so, again, a baker could sincerely believe that saying happy birthday to a black family is different from saying happy birthday to a white family, but we would not say that, therefore, it is permissible for a baker to say: birthday cakes for whites only.” (Trans. p. 81)

Alito: “So somebody comes to one of these services and says: You know, we’re not good with words, but we want you to write wedding -­a vow — vows for our wedding, and the general idea we want to express is that we don’t believe in God, we think that’s a bunch of nonsense, but we’re going to try to live our lives to make the world a better place. And the — the person who is writing this is religious and says: I can’t lend my own creative efforts to the expression of such a message. But you would say, well, it’s too bad because you’re a public accommodation. Am I right?” (Trans. p. 82)

No Request for Design

Cole: “There was no request for a design. There was no request for a message. He refused to sell them any wedding cake. And that’s identity-based discrimination. It is not a decision to refuse to put particular words on it.” (Trans. p. 77)

Messages Conveyed: Identity of Customer / Identity of Baker

Colorado Solicitor General Frederick R. Yager (credit: SCOTUSblog)

Gorsuch: “The state seems to concede that if it were the message, your client would have a right to refuse. But if it — the objection is to the person, that’s when the discrimination law kicks in. That’s footnote 8 of the Colorado Court of Appeals’ decision. I know you know this. So what do you say to that, that actually what is happening here may superficially look like it’s about the message but it’s really about the person’s identity?” (Trans. p. 24)

Gorsuch: “[Assume we have a case involving the] Red Cross, and the baker serves someone who wants a red cross to celebrate the anniversary of a great humanitarian organization. Next person comes in and wants the same red cross to celebrate the KKK. Does the baker have to sell to the second customer? And if not, why not?” (Trans. p. 84)

Cole: “No one is suggesting that the baker has to march in the parade, as Mr. Francisco said here. What the Colorado law requires is that you sell a product — when a — when a mom goes into a bakery and says make me a happy birthday cake for my child, and then she takes that cake home for her four-year-old son’s birthday party, no one thinks that the baker is wishing happy birthday to the four-year-old.” (Trans. p. 75)

Hair Stylists & Makeup Artisits 

Kagan: “[What about a] air stylist?” (Trans. p. 12)

Waggoner: “Absolutely not. There’s no expression or protected speech in that kind of context . . . .” (Trans. p. 12)

Kagan:: “Why is there no speech in — in creating a wonderful hairdo?” (Trans. p. 12)

Kagan: “[What about] the makeup artist?”(Trans. p. 12)

Waggoner: ” No. . . .” (Trans. p. 12)

Kagan: : “It’s called an artist. It’s the makeup artist.” (Trans. p. 12)

Kagan: “[Y]ou have a view that a cake can be speech because it involves great skill and artistry. And I guess I’m wondering, if that’s the case, you know, how do you draw a line? How do you decide, oh, of course, the chef and the baker are on one side, and you said, I think, the florist is on that side, the chef, the baker, the florist, versus the hairstylist or the makeup artist? I mean, where would you put a tailor, a tailor who makes a wonderful suit of clothes? Where does that come in?” (Trans. pp. 13-14)

Ginsburg: “I don’t see a line that can be drawn that would exclude the makeup artist or the hairstylist.” (Trans. p. 26)

Francisco: “[T]hat’s, of course, the question that the Court — Court has to answer at the threshold of every Free Speech Case. Is the thing that’s being regulated something we call protected speech? I think the problem for my friends on the other side is that they think the question doesn’t even matter. So they would compel an African American sculptor to sculpt a cross for a Klan service.” (Trans. p. 26)

Kennedy: “But the problem for you is that so many of these examples — and a photographer can be included — do involve speech. It means that there’s basically an ability to boycott gay marriages.” (Trans. pp. 26-27)

Architectural Design

Alito: “What would you say about an architectural design; is that entitled to — not entitled to First Amendment protection because one might say that the primary purpose of the design of a building is to create a place where people can live or work?” (Trans. p. 17)

Breyer: “Mies or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that — that really does baffle me, I have to say.” (Trans. p. 18)

Catholic Legal Services

Roberts: “I think there are many different faiths, but Catholic Legal Services, they provide pro bono legal representation to people who are too poor to avoid it and they provide it to people of all different faiths. So let’s say someone just like Respondents here, except needing the pro bono assistance, goes into Catholic Legal Services and say, we want you to take this case against Masterpiece Cakeshop. And the people at the -­the lawyers say: well, we — we’re not going to, because we don’t support same-sex marriage. Are they in violation of the Colorado law?” (Trans. p. 47)

Roberts: “You know, they’re having a . . .  a contract dispute with somebody in connection with their marriage, and the lawyer says we’re not going to provide services in connection with same-sex marriage because we have a religious objection to that.” (Trans. p. 48)

Roberts: “So Catholic Legal Services would be put to the choice of either not providing any pro bono legal services or providing those services in connection with the same-sex marriage?” (Trans. p. 49)

Religious College

Alito: “[W]ould you say that Colorado can compel a religious college. . . whose creed opposes same-sex marriage to provide married student housing for a married same-sex couple or allow a same-sex wedding to be performed in the college chapel?” (Trans. p. 93)

Work Beyond Cake Making

Kennedy: “[Assume] you need a baker, a baker’s assistant to be right there at the wedding so you cut it in the right place and the thing doesn’t collapse. Does the baker have to attend that wedding and help cut the cake? (Trans. p. 77)

Food is Different 

(Credit: The Daily Signal)

Sotomayor: “[W]hen have we ever given protection to a food? The primary purpose of a food of any kind is to be eaten. Now, some people might love the aesthetic appeal of a special desert, and look at it for a very long time, but in the end its only purpose is to be eaten. And the same with many of the things that you’ve mentioned. A hairdo is to show off the person, not the artist. When people at a wedding look at a wedding cake and they see words, as one of the amici here, the pastry chef said, there was a gentleman who had upset his wife and written some words that said ‘I’m sorry for what I did,’ something comparable, and the chef was asked, the cake maker was asked, was that affiliated with you?”  (Trans. pp. 14-15)

Where to Draw the Line: Predominate Purpose or Effect Test?

Noel J. Francisco, Solicitor General (credit: Jones Day)

Gorsuch: “[W]hat is the line? How would you have this Court draw the line?” (Trans. p. 39)

Francisco: “I think there are a couple of ways to draw that line, and this is something that the Court has to struggle with in a lot of cases. I think the first way to draw that line is you analogize it to something that everyone regards as traditional art and everyone agrees is protected speech.” (Trans. pp. 39-40)

Gorsuch:”W ould you say it’s a predominant purpose or a predominant effect? How would you characterize that?” (Trans. p. 41)

Corporate Seller

Sotomayor: “Were the seller of the cakes is not Mr. Phillips, it’s Masterpiece Corporation. Does it — in your arguments, who controls the expression here, the corporation or its shareholders? I always thought corporations were separate entities. And how do we impute to this corporation, which is just a bakery, doesn’t purport to sell just religious items, it’s a public place, how do we — and how do we make this decision with respect to the rights of individuals in a corporation that don’t have objections? So can the chef at the Hilton — and I don’t mean to demean the Hilton or anybody else, I’m using it as an example — can he say I don’t believe in same-sex marriage and I won’t create a cake and can he be fired?” (Trans. p. 96)

Tolerance

Supreme Court Justice Anthony Kennedy, second from left, in court on Tuesday (credit: sketch artist William Hennessy, Jr.)

Kennedy: [Response to Yarger reply above] “Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.” (Trans. p. 62)

Religious Animus 

Kennedy: “[S]uppose we thought there was a significant aspect of hostility to a religion in this case [by the Colorado Commission]. Could your judgment stand? (Trans. p. 53)

Gorsuch: “So we have two . . . commissioners out of seven who’ve expressed [some animus].” (Trans. p. 56)

Alito: “One thing that’s disturbing about the record here, in addition to the statement made, the statement that Justice Kennedy read, which was not disavowed at the time by any other member of the Commission, is what appears to be a practice of discriminatory treatment based on viewpoint. The — the Commission had before it the example of three complaints filed by an individual whose creed includes the traditional Judeo-Christian opposition to same-sex marriage, and he requested cakes that expressed that point of view, and those — there were bakers who said no, we won’t do that because it is offensive. And the Commission said: That’s okay. It’s okay for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage. But when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage.” (Trans. pp. 58-59)

Undermining Civil Rights Law

Breyer: “Now, the reason we’re asking these questions is because obviously we want some kind of distinction that will not undermine every civil rights law from . . . the year to — including the African Americans, including the Hispanic Americans, including everybody who has been discriminated against in very basic things of life, food, design of furniture, homes, and buildings.” (Trans. pp. 18-19)

Sotomayor: “[I]s your theory that . . . public accommodation laws cannot trump free speech or free-exercise claims in protecting against race discrimination?” (Trans. p. 21)

Kennedy: “If you prevail, could the baker put a sign in his window, we do not bake cakes for gay weddings?” (Trans. p. 27)

Breyer: “If we were to write an opinion for you, what would we have done to that [anti-discrimination] principle? And, of course, the concern is that we would have caused chaos with that principle across the board because there is no way of confining an opinion on your side in a way that doesn’t do that. So tell me how?” (Trans. pp. 43-44)

Kennedy: “[W]hat would the government’s position be if you prevail in this case, the baker prevails in this case, and then bakers all over the country received urgent requests: Please do not bake cakes for gay weddings. And more and more bakers began to comply. Would the government feel vindicated in its position that it now submits to us?” (Trans. pp. 44-45)

Cole: “We don’t doubt the sincerity of Mr. Phillips’s convictions. But to accept his argument leads to unacceptable consequences. 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. Now, both Petitioner and the United States recognize that these results are unacceptable with respect to race. And so they suggest that you draw a distinction between race discrimination and sexual orientation discrimination and the state’s ability to protect it. But to do that would be to constitutionally relegate gay and lesbian people to second class status, even when a state has chosen, as Colorado has done here, to extend them equal treatment.” (Trans. p. 73)

Roberts: “I’m not sure he provides equal services outside the context of wedding — weddings, to gay and lesbian individuals. And the racial analogy obviously is very compelling, but when the Court upheld same-sex marriage in Obergefell, it went out of its way to talk about the decent and honorable people who may have opposing views. And to immediately lump them in the same group as people who are opposed to equality in relations with respect to race, I’m not sure that takes full account of that — of that concept in the Obergefell decision.” (Trans. pp. 73-74)

Cole: “So, Chief Justice Roberts, the Court in Obergefell did, indeed, say that individuals are free to express their disagreement through speech with the notion of same-sex marriage, but it did not say that businesses who make a choice to open themselves to the public can then turn away people because they are gay and lesbian. All the baker needed to know about my clients was that they were gay and lesbian. And, therefore he wouldn’t sell them a wedding cake . . . .” (Trans. p. 74)

Scarcity of Servives or Not? 

Sotomayor: “[O]ne of the amici briefs pointed out that most military bases are in isolated areas far from cities and that they’re in areas where the general population, service population, is of one religion or close to one religious belief. So where there might be two cake bakers. They name a couple of military bases like that. Or two florists or one photographer. Very small number of resources.” (Trans. p. 28)

Kennedy: “Because accommodation is, quite possible, we assume there were other shops that — other good bakery shops that were available.” (Trans. p. 62)

Breyer: “Could the baker say, you know, there are a lot of people I don’t want to serve, so I’m going to affiliate with my friend, Smith, who’s down the street, and those people I don’t want to serve, Smith will serve. Is that legal? Would that be legal under Colorado law? That’d be a kind of accommodation, so they get the cake.” (Trans. p. 63)

Validity of Same-Sex Marriages at Time

Roberts: “Could he have said I am not going to make a cake for, you know, celebrating events that aren’t permitted in Colorado?” (Trans. p. 65)

Ginsburg: “Would Colorado be required to give full faith and credit to the Massachusetts marriage?” (Trans. p. 65)

Alito: “We’re thinking about this case as it might play out in 2017, soon to be 2018, but this took place in 2012. So if Craig and Mullins had gone to a state office and said we want a marriage license, they would not have been accommodated. If they said: Well, we want o recognize our Massachusetts marriage, the state would say: No, we won’t accommodate that. Well, we want a civil union. Well, we won’t accommodate that either. And yet when he goes to this bake shop and he says I want a wedding cake, and the baker says, no, I won’t do it, in part because same-sex marriage was not allowed in Colorado at the time, he’s created a grave wrong. How does that all fit together.” (Trans. p. 66)

Remedy: Compelled Speech?

Gorsuch: “As I understand it, Colorado ordered Mr. Phillips to provide comprehensive training to his staff, and it didn’t order him to attend a class of the government’s own creation or anything like that, but to provide comprehensive staff training. Why — why isn’t that compelled speech and possibly in violation of his free-exercise rights? Because presumably he has to tell his staff, including his family members, that his Christian beliefs are discriminatory. . . . . . . [T]his order was ordering him to provide training and presumably compelling him to speak, therefore, and to speak in ways that maybe offend his religion and certainly compel him to speak.” (Trans. p. 69 & 70)

Kennedy: “Part of that speech is that state law, in this case, supersedes our religious beliefs, and he has to teach that to his family. He has to speak about that to his family.” (Trans. p. 71)

___________________________

RESOURCES’ ROUNDUP  

→ Roberta Kaplan Looks for Close, Narrow Ruling in Cakeshop Case, The Advocate, Dec. 6, 2017

→ Ruthann Robson, Masterpiece Cake Oral Argument, Constitutional Law Prof Blog, Dec. 5, 2017

→ Erica Goldberg, Oral Argument in Masterpiece Cakeshop, Justice by Justice, In A Crowded Theater, Dec. 5, 2017

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