The Supreme Court Building in Washington, DC. Photo taken by Tim Sackton (CC-By-SA 2.0).
The Supreme Court of the United States Building
Photo credit: Tim Sackton (CC-By-SA 2.0)
The Supreme Court Building in Washington, DC. Photo taken by Tim Sackton (CC-By-SA 2.0).
The Supreme Court of the United States Building
Photo credit: Tim Sackton (CC-By-SA 2.0)

Yesterday, the Supreme Court heard oral arguments in a vitally important case that will impact religious liberty nationwide – Masterpiece Cakeshop v. Colorado Civil Rights Commission.

While I would not want to bet on the outcome I was encouraged reading the transcript of the oral arguments. Here are some of the highlights.

Arguments focused on the compelled speech doctrine.

Kristen Waggoner, an attorney with Alliance Defending Freedom representing Jack Phillips who owns Masterpiece Cakeshop, focused on Phillips’ artistic expression and said that the state of Colorado violated his First Amendment rights by forcing him to express messages that violate his religious convictions.

She cited the compelled speech doctrine and noted that Phillips would have been willing to serve these customers in other ways, and even sell them a pre-made cake. Waggoner contended that requiring Phillips to make and decorate a  custom-made cake for a same-sex marriage would trigger the compelled speech doctrine.

Waggoner pointed out that Phillips objection to the custom-made wedding cake was not addressed to the “who” the persons being married, but the “what,” the message that would be conveyed.

Noel Francisco, the solicitor general for the U.S. Department of Justice, also argued on behalf of the federal government supporting Phillips, made the following point to Justice Anthony Kennedy:

And I would submit.. that if you were to disagree with our basic principle, putting aside the line about whether a cake falls on speech or non-speech side of the line, you really are envisioning a situation in which you could force, for example, a gay opera singer to perform at the Westboro Baptist Church just because that opera singer would be willing to perform at the National Cathedral.

And the problem is when you force somebody not only to speak, but to contribute that speech to an expressive event to which they are deeply opposed, you force them to use their speech and send a message that they fundamentally disagree with.

And that is at the core of what the First Amendment protects our citizenry against.

There was concern that the Commission was biased.

Justice Kennedy asked about a statement one of the Commissioners made about groups claiming religious freedom and asked, Frederick Yarger, Solicitor General of Colorado, who represented the Commission, to explain:

Kennedy: 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 no have counseled my client to make that statement.

Kennedy: Do you know disavow or disapprove of that statement?

Yarger: I, I do, yes. Your Honor. I think I need to make clear that what the commissioner was referring to was the previous decision of the Commission, which is no matter how strongly held a belief, it is not an exception to a generally applicable anti-discrimination law.

Kennedy followed-up to ask, “suppose we thought that in significant part at least one member of the Commission based the commissioner’s decision on the grounds of that hostility to religion… Could your judgment then stand?”

Kennedy: Well, suppose we, suppose we thought there was a significant aspect of hostility to a religion in this case. Could your judgment stand?

Yarger: Your Honor, if there was evidence that the entire proceeding was begun because of an intent to single out religious people, absolutely, that would be a problem.

Justice Neil Gorsuch pointed out that there is a second commissioner that holds similar beliefs.

Gorsuch: Mr. Yarger, you actually have a second commissioner who also said that if someone has an issue with the laws impacting his personal belief system, he has to look at compromising that belief system presumably, as well, right?

Yarger: And yes, Your Honor. That’s the same principle that this Court recognized in cases…

Gorsuch: But a second commissioner?

Yarger: …cases like United States versus Lee…

Gorsuch: …so we have two, two commissioners out of seven who’ve expressed something along these lines.

Justice Samuel Alito pointed out how the Commission unequally applied Colorado’s law bringing a potential bias with the Commission into question.

Alito: The Commission had before it the example of three complaints filed by an individual whose creed includes the traditional Judeo-Christian opposition to same-sex marriage, and he requested cakes that expressed that point of view, and there were bakers who said no, we won’t do that because it is offensive.

And the Commission said: That’s okay. It’s okay for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage. But when the tables are turned you have a baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage.


Yarger: …. The facts of that case are that someone walked into a bakery and wanted a particular cake with particular messages on it that that bakery wouldn’t have sold to any other customer.

Mr. Phillips would not be required to sell a cake to a gay couple that he wouldn’t sell to his other customers.

Alito: No, but Mr. Phillips…

Yarger: What he said in this case…

Alito: Mr. Phillips would not…do you disagree with the fact that he would not sell to anybody a wedding cake that expresses approval of same-sex marriage?

Yarger: I — what he may not do as a public accommodation that offers to the public —

…. is decide that he won’t sell somebody a product that he would otherwise sell because in his view the identity of the customer changes the message.

Alito: No, he didn’t say the identity.

Yarger: That is discrimination under our law.

Alito: He said the message. He said the message.

Yarger: Well, and the message in this case, Your Honor, depended entirely on the identity of the customer who was ordering the cake.

Kennedy’s insightful remarks.

Justice Kennedy offers what I think is the money quote which may give us some insight into how he might rule in this case:

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 neither been tolerant nor respectful of Mr. Phillips religious beliefs.

Look at this later exchange Justice Kennedy had with David Cole, who argued on behalf of the private respondents.

Kennedy: Well, but this whole concept of identity is a slightly — suppose he says: Look, I have nothing against — against gay people. He says but I just don’t think they should have a marriage because that’s contrary to my beliefs. It’s not -­

Cole: Yeah.

Kennedy: It’s not their identity; it’s what they’re doing.

Cole: Yeah.

Kennedy: I think it’s — your identity thing is just too facile.

Here he seems to agree with the petitioners that Phillips actions were not based on the couple’s identity, but their actions.

Colorado wasn’t required to do what they expected of Jack Phillips.

Justice Alito then pointed out that in 2012, Colorado did not allow same-sex marriage. At that time they would not have had to provide a marriage license to the very same couple Jack Phillips did not want to make a custom wedding cake for.

We’re thinking about this case as it might play out in 2017, soon to be 2018, but this took place in 2012.

So if Craig and Mullins had gone to a state office and said we want a marriage license, they would not have been accommodated.

If they said: Well, we want you to recognize our Massachusetts marriage, the state would say: No we won’t accommodate that. Well, we want a civil union. Well, we won’t accommodate that either.

And yet when he goes to this bake shop and he says I want a wedding cake, and the baker says, no, I won’t do it, in part because same-sex marriage was not allowed in Colorado at that time, he’s created a grave wrong. How does all that fit together?

Why isn’t the Commission’s remedy compelled speech?

Justice Gorsuch asked whether or not the Commission’s remedy was compelled speech:

As I understand it, Colorado ordered Mr. Phillips to provide comprehensive training to his staff, and it didn’t order him to attend a class of the government’s own creation or anything like that, but to provide comprehensive staff training.

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.

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