Masterpiece Cakeshop Theater

Masterpiece Cakeshop Theater

I have to admit, I fell asleep at the baker’s wheel.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission was argued to the Supreme Court earlier this month and I, didn’t cover it. Not out of lack of interest, but more feeling like we’re chasing a swarm of daily dust ups created by (1) Trump Derangement Syndrome in all its many and varied forms, (2) Trump on Twitter, (3) media reacting to Trump on Twitter, (4) Alabama, (5) War on Women and #MeTwo, (6) Men at Work, (7) the End of the World. Plus, it was end of the semester, and things were busy.

Excuses, I’ve had a few.

But it’s obviously an interesting and important case, and I’ve been reading along even if not writing about it.

This video from The Daily Signal has good background on the Cakeshop owner, and the controversy:

I was interviewed on the Jack Riccardi Show in San Antonio, where I’ve appeared many times before. I find that Jack really is up to speed on the law on a variety of topics, and I always enjoy the segments.

At the time of the interview, the case was in the process of being argued, and I had not heard any reports about how the argument went.

Here is my segment.  It’s short, about 10 minutes. (Click here if doesn’t load.)

David French at National Review found oral arguments clarified a key point, that this was about the state trying to compel artistic speech:

Kristen Waggoner, the ADF attorney arguing for Jack Phillips strongly and clearly made the most vital point — the issue was the artistic message, not the identity of the customer. Here’s a key part of the transcript:

JUSTICE GINSBURG: What if — what if it’s — if it’s an item off the shelf? That is, they don’t commission a cake just for them but they walk into the shop, they see a lovely cake, and they say we’d like to purchase it for the celebration of our marriage tonight. The Colorado law would prohibit that. Would you claim that you are entitled to an exception?

MS. WAGGONER: Absolutely not. The compelled speech doctrine is triggered by compelled speech. And in the context of a pre-made cake, that is not compelled speech.

In other words, Masterpiece Cakeshop not only serves gay customers, it would sell a gay couple a wedding cake. What he won’t do is use his artistic talents specifically and intentionally for the purpose of celebrating a same-sex union. That’s the vital distinction. That’s what implicates the compelled speech doctrine. Good on Waggoner for making the distinction up front.

Amy Howe at Scotusblog finds a likely conservative majority in favor of the Cakeshop, Argument analysis: Conservative majority leaning toward ruling for Colorado baker:

Chief Justice John Roberts seemed to be squarely in Phillips’ corner. He asked Colorado Solicitor General Frederick Yarger, representing the state, whether Catholic Legal Services, which provides legal services to all different faiths, could refuse to take on a case involving same-sex marriage on the ground that it violated the group’s religious beliefs. Under Colorado law, Roberts suggested, the group would face an unpalatable set of choices: It could either stop providing any legal services at all or it could provide services that include same-sex marriage. And he reminded David Cole, representing Craig and Mullins, that, in its 2015 decision establishing a right to same-sex marriage, the court went “out of its way” to note that “decent and honorable people” may oppose same-sex marriage.

Justice Samuel Alito also seemed to be on board with Phillips’ arguments. He was concerned that, according to the state, another baker could decline to create cakes opposing same-sex marriage, but Phillips could not refuse to make a cake celebrating a same-sex marriage. Later he suggested that it was “very odd” that, in 2012, Craig and Mullins could not have gotten married in Colorado or had their Massachusetts wedding recognized by the state, but Phillips could get in trouble for refusing to make them a cake to celebrate their same-sex marriage.

Justice Neil Gorsuch, who until recently lived in Colorado, seemed to object to part of the state’s order in Phillips’ case, which required him to provide “comprehensive training” to his employees. Why wouldn’t the training be compelled speech, Gorsuch asked, when it would require Phillips to tell his staff that his Christian beliefs are discriminatory?

This is hopeful, but I’m not celebrating until we get the Opinion. Remember John Roberts in Obamacare I?

The oral argument full transcript is here. Here is the full audio:

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