The courtroom of the Supreme Court of the United States was the site on Tuesday of a high-stakes debate over the future of the right to refuse service or public accommodations based on religious grounds and the fate of American civil rights laws, as the justices questioned four attorneys at the oral argument for Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.
A war of hypotheticals waged by the deeply polarized liberal and conservative blocs on the high court, each of which hoped to fluster the two pairs of lawyers with the arguably disconcerting ramifications of taking their respective positions to their logical conclusions, characterized the roughly hour-long hearing.
Justice Anthony Kennedy, the Reagan appointee who has written the quartet of gay rights landmarks during his tenure on the court, sent contradictory signals that make his final position in this case impossible to predict.
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Jack Phillips is a Christian baker who opposes same-sex marriage. He refused to make a cake in 2012 for Charlie Craig and David Mullins, a Colorado couple who had gone to Massachusetts to marry, but planned a celebration for friends and family as well in their home state.
There remains a factual dispute about what actually happened after the gay couple entered the store, in particular about when, in the course of ordering a cake, they were told it would be impossible. In any event, they filed a complaint and the bakery, Masterpiece Cakeshop, was found to have violated Colorado’s public accommodations law, a statute that was amended in 2008 to explicitly ban discrimination based on sexual orientation. Similar protections exist in less than half of the states, and there is no explicit protection on the national level (though the Supreme Court could also decide this year whether LGBTQ people are covered under federal sex discrimination laws).
The case worked its way through the Colorado court system, with the bakery losing at every turn. Aided by the Alliance Defending Freedom, a conservative legal advocacy group known for representing religious business owners like him and opposing LGBTQ rights advances, Phillips has invoked the First Amendment in his defense, arguing that the Colorado law compels him to speak a message, as a “cake artist,” that violates his sincere religious convictions.
The Supreme Court accepted the case for review this past June.
Phillips sat an aisle apart from the gay couple in the courtroom, both surrounded by their respective camps. There was a palpable sense of excitement by the many luminaries of the religious right in attendance, potentially on the eve of a constitutional development they have fought in the trenches for over decades and feeling emboldened by the election of President Donald Trump and the confirmation of Justice Neil Gorsuch.
They were met with a mix of optimism and dread by the LGBTQ rights activists in the crowd. The openly lesbian chair and commissioner of the New York City Commission on Human Rights, Carmelyn P. Malalis, sat next to US Senator Claire McCaskill, a Missouri Democrat, in the public gallery.
Alliance Defending Freedom attorney Kristen Waggoner was first at the lectern, followed by US Solicitor General Noel Francisco, representing the Trump administration. They faced aggressive questioning from Justices Elena Kagan and Sonia Sotomayor (she made history Tuesday by using the acronym “LGBT” for the first time during a Supreme Court argument). Along with Justice Ruth Bader Ginsburg, they presented both attorneys with a litany of various vendors, different life events, assorted foods, and other minority groups to test the limits of their legal theory. The two attorneys had no discernible limiting principles to offer, and the answers they gave about the lines they hoped the justices would draw were not logically consistent.
Kagan asked a question at one point to the solicitor general that hit the nail on the head: “Why is this only about gay people?”
Beneath the surface of all the arguments made by the baker and his supporters on the court is the proposition that, for certain people, encountering and confronting gay individuals in everyday situations, and especially married ones, is somehow so uniquely troublesome and offensive that there is a need for previously unnecessary — and previously unthinkable — exceptions to civil rights laws.
David Cole, the national legal director of the American Civil Liberties Union, arguing for the gay couple, accurately told the justices that creating such an exemption would be “to constitutionally relegate gay and lesbian people to second class status.”
Holding the key vote, all eyes, of course, were on Justice Kennedy. He was not only ideologically, but also visibly, torn during the argument, leaning on his elbow for long stretches of time and looking up to the ceiling, deep in thought, after the answer to one of his questions.
Turning to the implications that a win for the baker could have for the LGBTQ community, Kennedy asked the solicitor general, “If you prevail, could the baker put a sign in his window, we do not bake cakes for gay weddings? And you would not think that an affront to the gay community?”
But Kennedy also later hammered Colorado Solicitor General Frederick Yarger, representing the state, about why a member of the Colorado Civil Rights Commission had said “it is one of the most despicable pieces of rhetoric that people can use, to use their religion to hurt others.” He later added that “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.”
The conservatives on the court returned fire with their liberal colleagues by asking a parallel series of questions about what might happen if the majority does not create some constitutional breathing room for religious refusals. Chief Justice John Roberts suggested a Catholic pro bono legal services organization might be forced to represent a married gay couple. Justice Samuel Alito said a religious college with similar objections might have to host same-sex weddings on campus or offer married student housing to same-sex couples.
And Justice Gorsuch went so far as to suggest that if a baker designed a cake for the Red Cross with an actual red cross, he might have to do the same for the Ku Klux Klan, despite the fact that the Klan is not protected by any civil rights laws in the country.
Justice Clarence Thomas, as usual, said nothing.
A decision will be released by the court by the end of June.
Matthew Skinner is the outgoing executive director of LeGaL — The LGBT Bar Association and Foundation of Greater New York and the incoming executive director of The Richard C. Failla LGBTQ Commission of the New York Courts.