NICK EICHER, HOST: From member-supported WORLD Radio, this is The World and Everything in It for Monday, December 11th. Good morning, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard.
Last Tuesday, the Supreme Court heard oral argument in perhaps the most consequential case of this term: Masterpiece Cakeshop versus the Colorado Civil Rights Commission, David Mullins, and Charlie Craig.
Back in 2012, the latter two parties—Mullins and Craig—asked the owner of Masterpiece, Jack Phillips of Lakeland, Colorado, to create a custom wedding cake in celebration of their same-sex union.
EICHER: The men then sued Phillips under Colorado’s anti-discrimination law, which prohibits places of public accommodation from refusing to serve people based on sexual orientation.
Phillips lost that case. The civil rights commission ordered him to create the cake and train his staff to align with the thinking of the state on sexuality.
But Phillips says this controversy is not, at the end of the day, about a wedding cake. Instead, he says, it’s about his right to free speech and free exercise of religion.
He doesn’t want to use his creations to send a message that conflicts with his deeply held religious beliefs about marriage.
REICHARD: He’s so serious about it that he gave up nearly half his income rather than bow to what he sees as state coercion to violate his conscience. Here he is last Tuesday outside the Supreme Court after arguments:
PHILLIPS: I’ve endured a five-year court battle. It’s been very hard on me and my family. There’ve been many tears, and many difficult, many difficult days for us. I’ve had to stop creating the wedding art that I love. I’ve faced death threats and harassment. Stopping the wedding art cost us much of our business, so much so that now we are struggling just to make ends meet and keep the shop afloat.
And so, Phillips took his case to the court of last resort.
His lawyer, Kristen Waggoner of Alliance Defending Freedom, got a few sentences out before the questions began.
First, from Justice Sonia Sotomayor:
SOTOMAYOR: …and they sat down with him and he said ‘I don’t supply cakes of any kind to gay couples.’ So I thought this cake was about his refusal to supply a cake for any wedding ceremony.
WAGGONER: Justice Sotomayor, that’s not how he responded to the couple. The couple came in and they requested a custom cake for their wedding. At that point, they brought in a folder with all kinds of designs they wanted to discuss….
…Waggoner correcting the erroneous understanding that the baker would not sell them anything for any reason. Phillips offered the couple cakes off the shelf, pre-made, or anything else in the store.
But that’s not what they wanted, as Waggoner explained, and they ended up going to another vendor, one that was willing to provide a custom, rainbow-layered cake.
WAGGONER: … and ended up purchasing a rainbow-layered cake or — or received a free rainbow-layered cake, which certainly is expression.
“A free rainbow layered cake, which certainly is expression.”
When you see a rainbow anything these days, it’s more likely associated in the public mind with LGBT advocacy than with God’s covenant following the great flood.
No words are spoken, yet symbols are “a short cut from mind to mind,” as the Supreme Court wrote in 1943. That was a case in which the justices said saluting the flag is a form of speech and cannot be compelled.
The high court in 1969 said wearing black armbands in protest of the Vietnam War was also “akin to pure speech.” No words, just symbols.
And still, speech.
The other justices cast about for a standard we can all live by: One that allows an artist to live out his sincere beliefs, while protecting from harm those who identify with the LGBT movement.
So the question for the justices became:
BREYER: What is the line? That’s what everybody’s trying to get at.
GINSBURG: I don’t see a line that can be drawn…
GORSUCH: So what is the line? How would you have this Court draw the line?
KAGAN: … people are asking you: What’s the line? How do we draw the line?
Where’s the line?
In 1995, the court drew a line in a case called Hurley. There, the justices ruled a parade organizer couldn’t be forced to include an LGBT group who wanted to participate.
Waggoner argued the same line should be drawn here:
WAGGONER: But we are drawing the line —there can be no compulsion of speech… Is the individual being compelled to speak objecting to the message that’s contained in that speech, or the person? And that’s usual a very obvious inquiry.
The more liberal-leaning justices wanted to know just how far that concept of a message communicated goes — if a cake, then what else? Listen to these exchanges, starting with Justice Sotomayor, then Justice Elena Kagan sparring with attorney Waggoner:
WAGGONER: There are sandwich artists now. There are people who create beauty in what they make, but we still don’t call it expressive and entitled to First Amendment protection.
KAGAN: So the jeweler?
WAGGONER: It would depend on the context as all free-speech cases depend on. What is the jeweler asked to do?
KAGAN: The hair stylist?
WAGGONER: Absolutely not. There’s no expression or protected speech in that kind of context, but what it —
KAGAN: Why is there no speech in creating a wonderful hairdo?
WAGGONER: Well, it may be artistic, it may be creative, but what the Court asks when they’re —
KAGAN: The makeup artist?
WAGGONER: No. What the Court would ask —
KAGAN: It’s called an artist. It’s the makeup artist. (Laughter.)
WAGGONER: The makeup artist may- again -be using creativity and artistry…But the test that this Court has used in the past to determine whether speech is engaged in is to ask if it is communicating something, and if whatever is being communicated, the medium used is similar to other mediums that this Court has protected.
…Other mediums, such as painting and sculpture.
Justice Stephen Breyer wondered how to avoid inadvertently undermining every civil rights law on the books that protects minority groups. If chefs, grocers, and even architects, who all think they are communicating something in their work, can have objections like this baker, what are we left with?
Waggoner pointed to routine inquiries the court makes into such situations and can use here.
But she faced a bewildering conflation of race—a class protected at the federal level—with sexual orientation, protected only at the state level in Colorado, from Justice Sotomayor. Listen:
SOTOMAYOR: Is your theory that public accommodation laws cannot trump free speech or free exercise claims in protecting against race discrimination?
WAGGONER: That is not my theory…
A person’s race, as well as even sexual orientation, is different from an event, something the baker understood.
Phillips regularly sells confections to those who identify as LGBT, but draws a line at creating celebratory art for same-sex ceremonies.
And his reason for that falls within another federally protected class: religion.
Justice Sotomayor again conflated race with an event and created a Hobson’s choice:
SOTOMAYOR: Counsel, the problem is that America’s reaction to mixed marriages and to race didn’t change on its own. It changed because we had public accommodation laws that forced people to do things that many claimed were against their expressive rights and against their religious rights.
WAGGONER: Justice Sotomayor, I think the gravest offense to the First Amendment would be to compel a person who believes that marriage is sacred to give voice to a different view of marriage and require them to celebrate that marriage….
SOTOMAYOR: Then don’t participate in weddings.
Justice Neil Gorsuch voiced the suspicion underlying Justice Sotomayor’s questions.
GORSUCH: 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?
The lower proceedings that ruled against the baker used a policy that allows the state to decide what speech is or isn’t offensive, Waggoner acknowledged, whether we’re talking about a message or an identity.
WAGGONER: …and it did not apply that in a fair way to Mr. Phillips, which creates viewpoint discrimination, as well as a violation of the Free Exercise Clause. But what’s deeply concerning is they believe that they can compel speech, of filmmakers, oil painters, and graphic designers in all kinds of contexts.
Next, Solicitor General Noel Francisco took the lectern in support of the baker. He urged the court to carve out some breathing space for the relatively few vendors who might decline a same-sex wedding.
That’s when Justice Anthony Kennedy, the likely deciding vote, made a comment that cheered LGBT hearts, as did Justice Sotomayor.
KENNEDY: If you prevail, could the bakery put a sign in its window, ‘we do not bake cakes for gay weddings?’ And you would not think that an affront to the gay community?
FRANCISCO: There are dignity interests on the other side here, too.
SOTOMAYOR: Counsel, sometimes it’s not just dignity.
…What about a same sex couple wishing to marry in a remote location, with only one or two bakers nearby?
A narrowly tailored ruling would fix that problem, Francisco responded.
The ACLU’s David Cole, representing the same-sex couple, stuck to one argument: Regardless of what the baker thinks is speech, it doesn’t matter, because the state’s anti-discrimination law applies to all. It’s neutral that way.
But Colorado’s human rights commission wasn’t neutral, as Justice Kennedy pointed out. He refers to one of the commissioners, Heidi Hess, in this exchange with Colorado solicitor general Frederick Yarger:
YARGER: Commissioner Hess says freedom of religion used to justify discrimination is a despicable piece of rhetoric. Did the Commission ever disavow or disapprove of that statement?
YARGER: There were no further proceedings in which the Commission disavowed or disapproved of that statement.
KENNEDY: Do you disavow or disapprove of that statement?
YARGER: I would not have counseled my client to..
KENNEDY: Do you disavow or disapprove of that statement?
YARGER: I — I do, yes, Your Honor.
That’s big. And in fact, the record shows two of the seven commissioners expressed hostility to religion. Yarger admitted that’s a problem.
It gets worse. This same commission upheld the rights of three other bakers to decline creating a cake with the one man, one woman marriage message. Those bakers comported with the state’s viewpoint, and so they got a pass.
And then this bombshell from Justice Kennedy:
KENNEDY: 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.
Other inconsistencies bothered the conservative leaning justices. Both the Chief Justice and Justice Samuel Alito noted same sex-marriage wasn’t even legal in 2012—when Phillips declined the cake order. The state of Colorado would have denied the couple its marriage license at that time.
Justice Gorsuch underscored the compelled speech aspect of what the human rights commission ordered, that Phillips retrain his staff.
GORSUCH: 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.
The baker’s lawyer Kristen Waggoner had the final word:
WAGGONER: And in this case dignity cuts both ways…This law protects the lesbian graphic designer who doesn’t want to design for the Westboro Baptist Church, as much as it protects Mr. Phillips. Lastly, political, religious, and moral opinions shift. We know that. And this Court’s dedication to Compelled Speech Doctrine and to free exercise should not shift.
Most legal prognosticators—liberals and conservatives—believe Jack Phillips will win in a narrow ruling, specific to custom creations.
I think that’s probably right, and if so, religious-liberty advocates will have something upon which to build further protections.
We’ll know by end of June, if not sooner.
And that’s this week’s Legal Docket.