This column by ACRU General Counsel Ken Klukowski was published December 5, 2017 by Breitbart.
WASHINGTON, DC—Religious-liberty activists and conservative Christian groups are optimistic after oral arguments on Tuesday at the U.S. Supreme Court in a case involving a Colorado Christian wedding cake baker that squarely pits constitutional rights of free speech and religious liberty against LGBT activists on the subject of same-sex marriage.
Colorado’s anti-discrimination law forbids businesses denying goods and services due to various reasons, including typical grounds like race and color, but also including sexual orientation.
A same-sex couple sued Jack Phillips when they asked him to customize a wedding cake to celebrate their same-sex marriage in 2012, at a time when Colorado did not recognize same-sex marriage or civil unions. Phillips declined on the grounds that his Evangelical Christian faith teaches that marriage is the union of a man and woman.
Alliance Defending Freedom (ADF) defended Phillips on the grounds that his right to decline to celebrate same-sex marriage is protected by either the Free Speech Clause or the Free Exercise Clause in the First Amendment of the U.S. Constitution, which trumps Colorado law.
U.S. Solicitor General Noel Francisco explained the position of the Trump administration:
This case raises an important issue for a small group of individuals; namely, whether the state may compel business owners, including professional artists, to engage in speech in connection with an expressive event like a marriage celebration to which they are deeply opposed. In these narrow circumstances, we believe the Free Speech Clause [of the Constitution’s First Amendment] provides breathing space.
When Justice Anthony Kennedy—the swing vote in this case, like many others—expressed concern that allowing people to assert this right could amount to “basically an ability to boycott gay marriages,” Francisco responded that this right extends only to “a relatively narrow category” of individuals and situations.
Rejecting the position that the LGBT advocates believe there is no line for speech protections against public accommodations laws at all, Francisco insisted, “I don’t think you could force the African-American sculptor to sculpt a cross for the Klan service just because he’d do it for other religious [services].”
Pressing his skepticism for the free speech argument, Kennedy asked, “And you would not think that an affront to the gay community?”
The liberal justices likewise raised objections to this line of arguments from both of the lawyers supporting religious liberty in this case.
Justice Ruth Bader Ginsburg asked if Phillips’ argument would also apply to “the person who… owns a floral shop. Would that person also be speaking at the wedding?”
“If they are custom-designed arrangements and they are being forced to create artistic expression which this Court determines is a message,” answered ADF’s Kristen Waggoner, arguing on behalf of Phillips.
“So the jeweler?” asked Justice Elena Kagan. “Hair stylist?”
“Absolutely not,” responded Waggoner. “There’s no expression of protected speech in that kind of context.”
“Why is there no speech in creating a wonderful hairdo?” Kagan replied skeptically, proceeding to list other professionals involved in the wedding event, such as a makeup artist.
“It’s called an artist,” said Kagan, emphasizing the word artist that is central to ADF’s case. “It’s the makeup artist.”
When Waggoner rejoined, “Because it’s not speech,” Kagan quickly came back with, “Some people may say that about cakes, you know?”
Later in the argument, when Francisco was at the podium representing the United States, Ginsburg pressed the Justice Department’s top courtroom lawyer about various sorts of discrimination.
“As this Court made clear in the Bob Jones case, the IRS could withdraw tax-exempt status from a school that discriminated on the basis of interracial marriage,” Francisco responded. “But I’m not at all sure that it would reach the same result if it were dealing with a Catholic school that limited married student housing to opposite-sex couples only.”
Trying to get past the specific facts of this case to articulate a principle of constitutional law that could be followed in future cases, Justice Neil Gorsuch said, “I’d appreciate a more abstract rule that the [federal] government suggests.”
Francisco responded that for something like a wedding cake, that is partly art but partly serves a specific function, the question could be, “is it predominantly art or predominantly utilitarian?” In answering that question, courts could consider either the purpose of the artistic creation or its effects.
Colorado Solicitor General Frederick Yarger argued in favor of Colorado’s law being able to force Phillips to customize the wedding cake.
Chief Justice John Roberts asked Yarger if the law could force Catholic Legal Services, a nonprofit that provides pro bono legal representation to people of many faiths, “to take this case against Masterpiece Cakeshop.” What would happen if this Catholic organization responded, “we’re not going to, because we don’t support same-sex marriage?”
Yarger ultimately responded by saying that he thought the state could force the Catholic organization to take this case, or take related cases such as a same-sex divorce or married housing for a same-sex couple.
The argument that might garner the fifth vote in favor of Phillips came from Kennedy, rather than the arguments presented by the lawyers. It had to do with the Free Exercise Clause, which guarantees a person’s right to freely exercise their religious faith, apart from speech.
Quoting one of the Colorado commissioners who had originally decided Phillips’ case, Kennedy noted the commissioner “says freedom of religion used to justify discrimination is a despicable piece of rhetoric.”
“Did the commission ever disavow or disapprove of that statement?” Kennedy challenged him. When he admitted the answer was no, Kennedy pressed him in a prosecutorial fashion if they had ever done or, or were doing so now.
“Counselor, tolerance is essential in a free society,” Kennedy sternly told Colorado’s lawyer. “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,” Kennedy concluded, quite possibly signaling which way the decisive vote in this case would go.
A decision is expected by the end of June.
The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111 at the U.S. Supreme Court.