Kennedy sends mixed messages in gay wedding cake case.

Kennedy Clashes With the Justice Department and the ACLU in Anti-Gay Baker Case

Kennedy Clashes With the Justice Department and the ACLU in Anti-Gay Baker Case

Oral argument from the court.
Dec. 5 2017 6:15 PM

Masterpiece Theater

The Supreme Court isn’t convinced that cake is speech—but Justice Kennedy might rule in favor of an anti-gay baker anyway.

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Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colorado, speaks outside the Supreme Court on Tuesday in Washington.

Brendan Smialowski/AFP/Getty Images

Does the First Amendment require a bakery to make cakes for all customers, regardless of their identities? You might expect the answer to be simple, since baking a cake for money would not appear to be “free speech” and would not seem to abridge “the free exercise of religion.” On Tuesday, however, a majority of the Supreme Court lambasted Colorado for daring to penalize a baker who refused service to a same-sex couple, strongly implying that the state’s enforcement of its own public accommodations statute violated the First Amendment. Indeed, the court is poised to create a new constitutional rule that would legalize anti-gay discrimination and could fatally undermine a vast swath of modern civil rights law.

Mark Joseph Stern Mark Joseph Stern

Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.

The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, began in 2012, when Charlie Craig and David Mullins walked into Masterpiece Cakeshop to buy a wedding cake. Same-sex marriage was not yet legal in Colorado, but the couple intended to marry in Massachusetts, then hold a reception back home. They sat down with Jack Phillips, the bakery’s owner, and explained that they wanted a cake for their wedding reception. Phillips then informed them that he would not bake a cake for same-sex weddings on account of his Christian beliefs. He had previously refused to make cupcakes for a lesbian couple’s commitment ceremony, saying he was “not willing to make a cake for a same-sex commitment ceremony,” just as he would “not be willing to make a pedophile cake.”

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Craig and Mullins filed a complaint with the Colorado Civil Rights Division. They alleged that Phillips had discriminated against them in violation of state law, which bars discrimination on the basis of sexual orientation in public accommodations. The commission filed a complaint against the bakery and eventually found that the business had engaged in unlawful anti-gay discrimination. It ordered Masterpiece to stop discriminating against same-sex couples and to train its staff to comply with state law. Phillips appealed, arguing that the order violated his First Amendment rights to freedom of speech and free exercise of religion. The Colorado courts rejected his claims, but in June, the Supreme Court agreed to hear the case.

Phillips is represented by the Alliance Defending Freedom, a powerful legal advocacy group that has spearheaded the attack on LGBTQ nondiscrimination laws. He also has the support of the United States government: The Department of Justice filed a brief on his behalf focusing solely on free speech and ignoring the free exercise question. ADF and the DOJ assert that Phillip’s baking qualifies as “artistic expression,” or at least “expressive conduct,” and that by forcing him to serve gays, Colorado is “compelling” speech in contravention of the First Amendment. The Colorado Civil Rights Commission and the ACLU, which represent Craig and Mullins, counter that cake-baking does not qualify as constitutional speech, and that even if it did, the state has a compelling interest in burdening Phillip’s “expression” to prevent discrimination.

For roughly the first half of Tuesday’s arguments, the liberal justices attempted to decipher the constitutional line that Phillips has asked the court to draw. According to ADF and the DOJ, the First Amendment protects businesses’ right to refuse “custom designed arrangement” for weddings. Justice Ruth Bader Ginsburg asked about floral arrangements and invitation design. As she likely knows, ADF has defended the right of florists and invitation designers to discriminate, and ADF attorney Kristen Waggoner indicated that both professions should receive protection. Justice Elena Kagan asked about jewelers and hair stylists.

“Absolutely not,” Waggoner responded.

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“Why is there no speech in creating a wonderful hairdo?” Kagan wondered, then added: “The makeup artist?” Waggoner said no, and Kagan looked surprised.

“A makeup artist, I think, might feel exactly as your client does,” she told Waggoner, “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 somebody look beautiful. And why wouldn’t that person or the hairstylist also count?”

“Because it’s not speech,” Waggoner said.

“Some people might say that about cakes, you know?” Kagan retorted.

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“When have we ever given protection to a food?” Justice Sonia Sotomayor followed up. “The primary purpose of a food of any kind is to be eaten. Now, some people might love the aesthetic appeal of a special dessert and look at it for a very long time, but in the end, its only purpose is to be eaten.”

Actually, Sotomayor noted, the Supreme Court has addressed a claim that chefs have a right to ignore civil rights law—and unanimously rejected it. In 1968’s Newman v. Piggie Park, the court unanimously held that a barbecue shop had no First Amendment right to discriminate against black customers. But Waggoner suggested that race discrimination is just worse than other forms of discrimination. So her theory would merely undercut protections on the basis of religion, national origin, sex, and LGBTQ status. Racial minorities, and nobody else, would retain their right to service.

Solicitor General Noel Francisco then approached the lectern to defend the same position. He was immediately cornered by Justice Anthony Kennedy, who is expected to be the swing vote in Masterpiece. Kennedy asked Francisco if, in his view, “the baker put a sign in his window” that reads, “We do not bake cakes for gay weddings.”

“I think that he could say he does not make custom-made wedding cakes for gay weddings,” Francisco replied.

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“And you would not think that an affront to the gay community?” Kennedy said, sounding gravely concerned. A few minutes later, he asked Francisco an even sharper question: “What 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.” Kennedy then looked straight at Francisco and deadpanned: “Would the government feel vindicated in its position that it now submits to us?”

With this burn, Kennedy was almost certainly criticizing the Justice Department for weighing in on Masterpiece in the first place. The DOJ’s brief was entirely gratuitous, a cheap shot designed to appease the Trump administration’s anti-LGBTQ allies. It now seems to have backfired, alienating Kennedy with a cynical exercise in homophobia.

And yet, just as five votes appeared to be emerging for the rights of same-sex couples, Kennedy veered in a radically different direction. When Colorado Solicitor General Frederick Yarger began defending the state, Kennedy jumped down his throat. The justice brought up the Free Exercise Clause, which does not forbid some burdens on religion, but does bar intentional discrimination on the basis of faith. He noted that one Colorado civil rights commissioner, Diann Rice, had proclaimed that “freedom of religion used to justify discrimination is a despicable piece of rhetoric.”

“Did the commission ever disavow or disapprove of that statement?” Kennedy asked. No, Yarger said. “Do you disavow or disapprove of that statement?” Kennedy demanded.

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“I do,” Yarger responded.

“Suppose we thought there was a significant aspect of hostility to a religion in this case,” Kennedy continued.  “Could your judgment stand?”

Yarger dodged, but Kennedy soon drilled down.

“Tolerance is essential in a free society,” he lectured Yarger. “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.”

All of a sudden, Colorado seemed to have lost Kennedy. It only got worse when ACLU legal director David Cole steps up to defend Craig and Mullins, focusing on one fundamental point: Colorado law does not compel businesses to express any message; it protects individuals on the basis of their identities. Phillips did not break the law because he would not endorse a same-sex wedding; he broke the law because he refused to bake a cake for a couple on the basis of their sexual orientation. Yet even this straightforward framing of the case irked Kennedy.

“Suppose he says: ‘Look, I have nothing against gay people,’ ” Kennedy said. “ ‘But I just don't think they should have a marriage because that’s contrary to my beliefs.’ It’s not their identity; it’s what they’re doing. Your identity thing is just too facile.”

What? Kennedy seems to believe that a business can refuse to serve a same-sex couple’s wedding without discriminating on the basis of sexual orientation. That’s nonsense, of course: Just as refusal to serve an interracial wedding is race discrimination, and refusal to serve an interfaith wedding is religious discrimination, Phillips’ refusal to serve a same-sex reception is plainly anti-gay discrimination. Yet ADF looks to have convinced Kennedy that the usual logic of bigotry does not apply to gays and that same-sex weddings are uniquely undeserving of legal protection.

Chief Justice John Roberts, as well as Justices Samuel Alito and Neil Gorsuch, spent the morning pummeling Yarger and Cole with barbed questions telegraphing their support of Phillips. Justice Clarence Thomas, who believes “religious freedom” should generally trump others’ rights, will surely side with him, too. It isn’t clear that Kennedy thinks Colorado infringed on Phillips’ freedom of expression. But he is disturbed by the Colorado’s vigorous enforcement of its nondiscrimination law against a baker who, in his view, was persecuted by the state.

Kennedy might not buy Phillips’ broader constitutional claims, but he plainly views the baker as a noble if provincial victim of government bullying. In fact, that’s not true at all: The record reveals Phillips to be an unapologetic bigot who loathes gay people and wants an unconditional right to degrade them but was coached by ADF to reframe his homophobia as sincere religious principles. Kennedy bought into this phony narrative, and his gullibility could imperil the constitutional foundation of civil rights law.

Still, it’s difficult to forecast the outcome of Masterpiece. I can’t count five votes for the couple, and I doubt Kennedy wants to give Colorado an unqualified victory. At the same time, I’m not convinced that Kennedy truly believes that the First Amendment can override basic nondiscrimination laws in quintessential public accommodations like a bakery. For progressives, the best case scenario is probably a 5–4 vote that rejects the free speech argument, then sends Masterpiece back down to the lower courts for a further exploration of the religious discrimination that Phillips allegedly faced. Equally likely, and much more disturbing, is a split vote in Phillips’ favor that purports to resolve the case narrowly, protecting “cake artists” and leaving tough line-drawing for another day.

But that’s the problem here: Once the court begins to chip away at civil rights law, there’s no obvious endpoint. Today, it’s a same-sex couple that wants a cake. Tomorrow, it’s an interfaith couple that wants a bouquet. What about cupcakes for a black child’s birthday? Catering for a bar mitzvah? Are Starbucks employees “coffee artists”? ADF brought this case to diminish protections for LGBTQ Americans, but it could wind up subverting the legal framework that shields everyone from discrimination in our day-to-day lives. And all because one “cake artist” would rather humiliate gay couples than do his job and bake the damn cake.

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