Olivier Douliery/Abaca Press/Sipa via AP Images
Tuesday's oral argument in Masterpiece Cakeshop v. Colorado, in which a baker claims a free speech right to refuse to make a cake for a same-sex wedding, suggested that a majority of the Court may be inclined to rule for the baker.
But the most coherent way for the justices to do that would signify almost nothing about the larger question of how to resolve the tension between same-sex rights and religious liberty. Instead, it would complicate President Trump's life in, of all things, the apparently unrelated travel ban case.
The baker, Jack Phillips, claims that his cakes are expressive works of art, and that making a cake for a same-sex wedding would force him to send a message of approval of same-sex marriage, which he rejects for religious reasons. He's willing to sell premade cakes to same-sex couples, but not wedding cakes made to order.
The trouble with his claim is that it leaves mysterious which activities would be immunized from anti-discrimination law. Lots of goods and services have expressive significance. Justice Elena Kagan observed that “great skill and artistry” could be involved in the work of hair stylists, makeup artists, chefs, even tailors. All of them create something meaningful, but that can't mean that they all have a right to discriminate.
Many of the exchanges between the justices and the attorneys consisted in fruitless struggles to figure out where that line could be drawn. Justice Stephen Breyer worried that if the Court rules in favor of Phillips, “we would have caused chaos with that principle across the board because there is no way of confining an opinion on [the baker's] side in a way that doesn't do that.” Without definite boundaries, the argument would “undermine every civil rights law.”
Even Justice Neil Gorsuch, generally sympathetic to the baker, said “I'd appreciate a more abstract general rule than the government suggests.”
A number of such general rules were suggested in the briefs. As I explained in an earlier article, all of them lead to chaos. Solicitor General Noel Francisco, arguing on behalf of the Trump administration, made a new suggestion in response to Gorsuch: to find out whether conduct, such as food preparation, is protected speech, “you analogize it to something that everyone regards as traditional art and everyone agrees is protected speech.” That’s a nice job to give to trial courts. No one would be able to figure out what is and what is not immunized from anti-discrimination law.
Justice Sonia Sotomayor observed that, in some places, such as military bases far from cities, there might be a very small number of providers, so that the service would be absolutely unavailable. Francisco responded that “that is precisely a situation where the state would be able to satisfy heightened scrutiny because their interests in providing access to goods and services would be narrowly tailored.”
But notice how impossible this makes the burden for the discrimination claimant: now, in addition to proving the discrimination, the complaint would have to survey the neighborhood to prove that no substitute was available, which would mean contacting every other service provider to ask what they would have done. (And hope for truthful answers: Those who discriminate often don't want to advertise that fact.)
Justice Gorsuch, casting about for some theory that could help Phillips, noted that the Colorado Commission ordered training for the bakery staff—a common remedy in discrimination cases. “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 attorney correctly responded that all the baker must do is teach his staff is how to obey the law.
Justice Anthony Kennedy is the likely swing vote. He wrote the Court's decision upholding same-sex couples' right to marry, but he also tends to vote in favor of free speech claimants. He worried that if the baker prevails, he could “put a sign in his window, we do not bake cakes for gay weddings.” That would be “an affront to the gay community.”
Kennedy however was troubled by one detail in the record. One of the members of the Colorado Civil Rights Commission declared: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history ... to me it is one of the most despicable pieces of rhetoric that people can use … to use their religion to hurt others.” The implication is that religious claims are insincere, a pretext for a desire to harm.
Kennedy pressed the commission's attorney, who presented the state of Colorado's argument, to disavow the statement. “It seems to me that the state in its position here has neither been tolerant nor respectful of Mr. Phillips's religious beliefs.”
The commissioner's statement was stupid. The Court could send the case back for rehearing by an unbiased panel, excluding the commissioner who made the offensive statement. There is no reason to think that that would change the outcome, so this mammoth fight would have produced no result at all, except to show that the Court persists in giving serious consideration to wild right-wing theories. The baker would get his case reheard, but in the end he would lose, and Colorado’s anti-discrimination law would continue to operate undisturbed by the Supreme Court.
If the Court rules on the case that way, it would rely on a very different principle than the baker is relying on: that a government decision is illegitimate if it is based on dunderheaded religious bigotry. The Colorado commissioner's statement wasn't smart, but it was mild compared with some of the spectacularly vicious things that Donald Trump has said about Islam.
If the Court overturns the Colorado Commission's decision because of the decision-maker's bias, then it would be mighty embarrassing for it to tolerate the far worse biases of the president. So the upshot of the Masterpiece Cakeshop case would be to reinforce the case against the anti-Muslim travel ban, but to decide nothing on the question that the case was really about: the tension between same-sex rights and religious liberty.
