Troubling Signs for Gays from Supreme Court in Cakeshop Arguments

By | 2017-12-05T09:00:00+00:00 December 5th, 2017|National, News|

by Chris Johnson

The gay couple who challenged a Colorado baker’s decision to refuse to bake them a wedding cake says their case is about “freedom.” (Washington Blade photo by Michael Key)


The U.S. Supreme Court concluded arguments Tuesday in the Masterpiece Cakeshop case with no clear indication of whether it would rule as swing-vote U.S. Associate Justice Anthony Kennedy expressed skepticism of the Colorado non-discrimination law, but also sent conflicting messages.
As the American Civil Liberties Union’s national legal director David Cole argued before the bench, Kennedy remarked the attorney’s claim the baker, Jack Phillips, denied a wedding cake to the same-sex couple based on their identity, rather than objections to same-sex marriage, was “too facile.”
Kennedy also maintained “tolerance is essential” in society and accused the Colorado Civil Rights Commission of being “neither tolerant, nor respectful of Phillips’ religious beliefs,” noting a line in commission’s ruling calling the baker “despicable.” Kennedy also mentioned “other good bakery shops that were available.”
But Kennedy also questioned whether denial of wedding cake compromised the dignity of the couple — a principle of significant importance to the justice — and questioned why selling ready-made cake to couple wouldn’t be speech as opposed to custom cake. Kennedy also envisioned after a ruling in favor of the baker religious groups sending messages to bakeries to “not make cakes for gay weddings.”
In the aftermath of the hearing, reporters in the Supreme Court press room speculated the Supreme Court could rule by remanding the case to the Colorado Civil Rights Commission with instructions to be more tolerant of Phillips’ religious beliefs. Another possibility was a ruling specifically crafted to apply to Colorado’s non-discrimination law without nationwide implications.
The petitioner in the case, Phillips, argues that making a wedding cake is inherently an artistic act of expression protected under the First Amendment, therefore he should be able to deny wedding cakes out of religious objections to same-sex couples like Charlie Craig and David Mullins, who sought to buy a cake for their wedding in 2012.
The Colorado Civil Rights Commission determined Phillips’ denial of service to the couple amounted to unlawful anti-gay discrimination under the Colorado Anti-Discrimination Act. Although state courts have affirmed that ruling, the Supreme Court agreed to take up the case earlier this year.
U.S. Associate Justices Elena Kagan and Sonia Sotomayor, the Obama-appointed justices, made the strongest case for the Colorado non-discrimination law and at times were seemingly trying to coax Kennedy, who has long history of ruling in favor of gay rights, to side with the same-sex couple.
When Kristen Waggoner, senior vice president of U.S. advocacy for the law firm Alliance Defending Freedom, approached the issue of dignity by saying “in this case, dignity cuts both ways” and the Colorado law is demeaning to Phillips, Sotomayor shot back that wasn’t the case.
“It’s not demeaning to someone to say if you choose to participate in our community in a public way…you have to sell it to everyone if you open your door,” Sotomayor said.
Asserting society has “competing beliefs,” Sotomayor recognized LGBT people “have been humiliated…treated unequally” and enumerated the history of discrimination against them, such as being LGBT people being denied medical treatment. That history, Sotomoyor said, justifies a non-discrimination law in public accommodations.
“There’s certain…conduct you can’t engage in, and that includes not selling products you would sell to everyone else,” Sotomoyor said.
U.S. Solicitor General Neil Francisco made the case the First Amendment allows an individual to deny a wedding cake to same-sex couple, but not for an interracial or black couple because that act would be based on identity, not the act of same-sex marriage.
When Kagan asked whether denying a wedding to a couple was an affront to the LGBT community, Francisco conceded dignity issues were at stake, but sometimes there’s “dignity interest on the other side.”
Both Francisco and Waggoner made heavy use of the Supreme Court precedent in the case of Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, a 1995 decision which held the state can’t compel individuals in a public demonstration to include groups who impart a message the organizers don’t want in their demonstration.
Francisco called the decision against Masterpiece Cakeshop the “flipside of Hurley” because in this case Colorado was essentially forcing Phillips to take part in the metaphorical parade of supporting same-sex marriage.
There was little time for attorneys to make their cases before the Supreme Court without interruption as justices continually peppered with inquiries and challenged, but on occasion were able to make the points they had prepared.
Cole, representing the American Civil Liberties Union and the same-sex couple, emphasized the far-reaching implications of ruling in favor of being allowed to deny wedding cases to LGBT people.
“We don’t doubt the sincerity of Mr. Phillips’ [beliefs], but to accept his argument leads to unacceptable consequences,” Cole said.
Waggoner said forcing Phillips to make wedding cakes contrary to his beliefs would be the “greatest offense to the First Amendment.”
“A wedding cake expresses an inherent messages that a union is to be celebrated, and that message conflicts with Phillips’ religious beliefs,” Waggoner said.
More to come…

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