The Supreme Court argument of the Masterpiece Cakeshop case began with comedy, on Tuesday, and may have ended in tragedy. The case arose when Charlie Craig and David Mullins sought to order a custom-designed wedding cake from the Masterpiece Cakeshop, in Lakewood, Colorado. Jack Phillips, the proprietor, has a religious objection to same-sex marriage, and he refused to design a cake for them. The couple filed a complaint, which they won, under a state law that bans discrimination on the basis of sexual orientation. Phillips appealed to the Supreme Court, arguing that the state ruling violated his rights to free speech and the free exercise of religion.
The heart of Phillips’s argument, which is supported by the Trump Justice Department, is that his cakes are artistic creations. Forcing him to create these works of art against his wishes is like forcing a poet to write a verse; such “compelled speech,” as the legal concept goes, violates the First Amendment. In the early moments of the arguments, Justice Elena Kagan wrote the gags, with Kristen Waggoner, the lead lawyer for the bakery, as the unwilling straight woman.
Justice Ruth Bader Ginsburg started the line of attack, by asking if a person who designs wedding invitations is also an artist, who could refuse to do business with gay customers. Waggoner hedged, and Kagan jumped in. What about the jeweller who designs the rings? “It would depend on the context,” the lawyer responded. But Kagan was just warming up. What about the hair stylist? An artist? “Absolutely not,” Waggoner said. “There’s no expression or protected speech in that kind of context.” Kagan asked, “The makeup artist?” Not an artist, Waggoner said.
“It’s called an artist,” Kagan shot back. “It’s the makeup artist.” The courtroom audience, which is usually sedate, roared with laughter. Kagan wasn’t done. What about the chef who cooked the wedding dinner? Not an artist, Waggoner said. “Whoa!” Kagan replied. “The baker is engaged in speech, but the chef is not engaged in speech?”
Kagan’s point was obvious and difficult to refute. People in many businesses do work that involves some element of creativity and expression. If the Court were to rule that cake bakers had a First Amendment right to discriminate, what was to stop virtually any retail business with religious owners from exempting itself from anti-discrimination laws? Justice Stephen Breyer cut through the comedy to make this serious point. “The reason we’re asking these questions is because obviously we want some kind of distinction that will not undermine every civil-rights law, from the year one . . . including everybody who has been discriminated against in very basic things of life, food, design of furniture, homes, and buildings.”
Waggoner and Noel Francisco, the Solicitor General, didn’t do very well in trying to draw the distinction that Breyer was looking for. In fact, many movement conservatives and their allies in the Administration want to weaken all anti-discrimination laws. (Such efforts can draw on a long history of religious objections—to things such as interracial marriage, for example.)
The outcome of the case seems to rest, as it does so often in the current Court, with the vote of Justice Anthony Kennedy. At first, he seemed sympathetic to Craig and Mullins, the couple who had been denied service.(Kennedy is the author of all the Court’s major gay-rights decisions, including the Obergefell decision, which legalized same-sex marriage in all fifty states.) He seemed to understand how demeaning their treatment had been. He asked Francisco, “Could the baker put a sign in the window—‘We do not bake cakes for gay weddings?’ . . . And you would not think that an affront to the gay community?”
But Kennedy also expressed a regard for the sensitivities of the baker, and he seemed to think that the state law was designed to harm the devout—showing “hostility to religion”—rather than to protect the oppressed. When the time came for Colorado to defend its law, Frederick Yarger, the state solicitor general, gave a series of halting and inept replies. David Cole, the national legal director of the American Civil Liberties Union, tried to undo some of the damage, by pointing out that the law didn’t compel Phillips to say or to believe anything, only to treat all customers the same way. But Kennedy left the impression (perhaps misleadingly) that he was leaning against Cole’s position.
The briefs in the case were full of testimonials about the artistic qualities of icing, and the argument veered at times into the metaphysical. (Does a four-year-old’s cake say “happy birthday” from the baker, or from the kid’s mom?) But the message in the courtroom was, in the end, deeply sombre. Discrimination against gay people (and others) is clearly fine with the Trump Administration, and, in this case, it may be fine with the Supreme Court, as well.
~Jeffrey Toobin has been a staff writer at The New Yorker since 1993 and the senior legal analyst for CNN since 2002.