Reading the Tea Leaves From the Supreme Court’s Cakeshop Argument

The United States Supreme Court just finished hearing arguments in what will likely be a landmark case about the viability of the nation’s civil rights laws. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the question is whether a commercial bakery has a constitutional right to refuse to sell to a same-sex couple a wedding cake that it would have sold to any straight couple.

The Background

The ACLU represents Dave Mullins and Charlie Craig, who were planning their wedding in 2012. With Charlie’s mom, Debbie Munn, they went to the Masterpiece Cakeshop bakery to talk about ordering a wedding cake. As soon as the bakery’s owner, Jack Phillips, learned that it was Dave and Charlie who were getting married, he refused to sell them any wedding cake, saying it violated his religious beliefs.

It’s long been the law in America that when a business opens its doors to the public, it has to be open to everyone. Colorado law, in fact, bars retail stores from turning people away from a business because of who they are, including based on race, sex, religion, disability, and sexual orientation or gender identity.

The bakery asserts that enforcing Colorado’s public accommodations law would force it to express support for a same-sex couple’s wedding, which would violate its constitutional rights to speech and religion. But Colorado law doesn’t require the bakery to create any particular cake or endorse anyone’s marriage. It simply requires that a business sell its products to both heterosexual and same-sex couples alike without discrimination.

The bakery, however, seeks a constitutional right to pick and choose its customers based on its religious views or simply its preference about who it considers acceptable as members of the public. Such a right would create a gaping hole in the nation’s civil rights laws, licensing discrimination whenever a business asserts a religious or expressive justification for the discrimination.

The Argument

In cases as divided and important as this one, it’s almost always difficult to get a good sense of how the justices will rule just from listening to the oral arguments. But here’s my take on what we heard from the court today.

At the outset, several justices made an explicit connection between civil rights cases from the 1960s and today. Through probing questions, Justices Sotomayor and Breyer pointed out that the court has never before accepted claims by businesses that their free speech or religion rights justified overriding nondiscrimination laws.

Importantly, those justices included Justice Kennedy, who could well be the swing vote in this case. Addressing the bakery’s free speech claims, Justice Kennedy made clear that he sees how a ruling for the bakery could license discrimination by businesses across the country. He asked U.S. Solicitor General Noel Francisco whether the bakery could put up a sign saying, “No wedding cakes for same-sex couples.”

When Solicitor General Francisco said the bakery could put up that sign if it said “no custom cakes,” Justice Kennedy suggested that such a sign would be an “affront to the gay community.” Clearly, he understands the harm of being turned away from a business because of who you are. He also talked about how, if the bakery wins here, other bakeries and similar businesses across the country could start more openly picking and choosing their customers based on identity. Those remarks suggest he agrees with Dave and Charlie that Colorado’s law should be enforced against the bakery.

But Justice Kennedy also expressed some concerns about the bakery’s freedom of religion claim. The Colorado Civil Rights Commission conducted an initial hearing in the case, and Justice Kennedy seemed to think it might have been biased against the bakery because of its owners’ religious beliefs. He pointed to the comment of one of the commissioners, who said:

“Freedom of religion and religion has been used to justify discrimination throughout history, whether it be slavery, whether it be the [H]olocaust, whether it be — I mean, we — we can list hundreds of situations where freedom of religion has been used to justify discrimination. And it has to be one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.”

He seemed to be exploring, through his questions, whether the court should remand the religion claim case back to the Colorado Civil Rights Commission to give it a chance to reevaluate the claim without what he may see as one Commissioner’s antipathy to the bakery’s religious views, perhaps by asking that Commissioner to recuse herself. In his final comments on the statements of one of the commissioners, Justice Kennedy said that he was concerned that the state had not been tolerant or respectful of the baker’s beliefs.

Some of the other justices explored the fuzzy line the bakery was drawing between products that the bakery’s lawyers said was speech — baking a cake — and conduct they said wasn’t speech, like cooking a meal, designing a building, or styling a person’s hair. They did not seem convinced that courts could make meaningful distinctions between such activities, despite the bakery’s efforts.

But Justice Kennedy is likely to be the key vote on this case. While much of what he said bodes well for the future of civil rights laws, we will have to wait for the court’s decision, which will be issued before the end of June, to see how it all comes out.

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Mainline protes...

What next? Do we turn away fat people because we believe it's immoral to become overweight? Or blue-eyed people with eye damage who stupidly (immorally?) spent too much time in the sun without sunglasses? My religion determines in part how I MYSELF live. I have no right to impose my religious views on OTHERS.

Anonymous

Yes, turn away fat people. When I’m on a plane and a fat asses 70 year old in a wheel chair is sitting next to me, I’m angry. I know I should be accommodative but FUCK that! Your fat old ass needs TWO seats and you should pay full price for them! You delay flights at least 20 minutes every time fatfucks. Stop stuffing your face and take the fucking train, it’s designed for heavy freight,

Yes, educate fair skinned people about sun caused diseases. Yes, educate dark skinned people that they get skin cancer at the same rate as whites.

And no, you can’t force your religion on me, I’ll kill myself first. But you’ll probably die before I do.

Dr. Henry W. Jo...

I'll bet that fat hating asshat calls himself a "Christian". What if that 70 year old was a Vietnam Vet whose mobility is nil because he lost it for our country after being drafted? What if his pain meds cause weight gain? We are being taken over by Nazis like this guy. I hate Nazis.

Dr. Joseph Goebbels

Nope, I’m not Christian just a Nazi. I ride a noisy ass Harley, lost Vietnam, beat my kids, drink too much, and listen to Charlie Pride, even though I hate niggers.

Dr. Henry W. Jo...

I wish you many Beautiful Black grandchildren. Must suck to have lost the first and only war in the entirety of American History. I hope you fall into a room of snakes, you piece of slime. I hate Nazis.

Dr. Henry W. Jo...

Can’t we just all get back to the truth.

Jesus was an angry gay Jew drunk with a foot fetish.

Dr. Henry W. Jo...

Thou hast hijacked my identity, like my father and I once hijacked a plane attached to a Zeppelin. You are a coward, NAZI, like all of your ilk. I hate Nazis.

Anonymous

You can, in fact, turn away blue eyed people if you want. Eye color is not a protected class.

Elon Pokerthroat

F.Y.I., the above comment was not from the real Dr. Joseph Geobbels.

Anonymous

When I was much younger and had fast food jobs I used to wish I could turn away the morbidly obese. I felt guilty serving them. I couldn't shake the thought that I was helping them kill themselves. I'm not kidding either. I really liked some of them, too, which made it even worse. I just wanted to say "you are so nice and I like talking to you and I feel so horrible handing you these burgers and that milk shake knowing it could be the meal that kills you". I could just imagine how much worse it would have felt if I believed I would be going to hell for giving them that shake, too. As it was, I did worry a bit about my karma.

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