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Arguments Heard in LGBT Rights Case: Will the Supreme Court Take the Cake?

The Supreme Court has heard the oral arguments on the first substantial LGBT rights case of since Neil Gorsuch was appointed as a Justice. The case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission revolves around a baker who refused to sell a wedding cake for a gay couple’s wedding all the way back in 2012.

The baker, Jack C. Phillips, cited his own religious beliefs that homosexual marriage is wrong and his making a cake for the wedding would “displease God” and send the message that he supported the nuptials. The couple was denied their wedding cake, an experience they have described as one of extreme humiliation–something that broke them down to tears. They originally did not even consider that there may be laws protecting them based on sexual orientation, not altogether surprising given the long standing complete lack of protection for the LGBT community.

The couple eventually sued, refusing service based on sexual orientation violates Colorado discrimination laws known as the Colorado Anti-Discrimination Act. Phillips has lost an argument that the discrimination laws violate his First Amendment freedom of speech and freedom of religion rights at every level of the courts thus far, losing before an Administrative Law Judge, the Colorado Civil Rights Commission, and the Colorado Court of Appeals.

The Supreme Court of Colorado had no interest in hearing a further appeal of the case. This has left him appealing his case to the highest court in the land, the Supreme Court accepted the case and has just heard oral arguments–this means the lawyers for both sides (and a Trump Administration lawyer appearing on behalf of the baker) answered questions regarding the arguments they had already submitted in writing to the Supreme Court.

The arguments from Phillips essentially boil down to two arguments. First, his cakes (with nothing written on them) are free speech expression in the vein of a statue and Colorado law cannot compel him to “speak.” Second, the law forces him to act against his religious beliefs in violation of the Free Exercise Clause of the First Amendment. These are the two questions which the Supreme Court have agreed to answer–whether the Colorado discrimination laws on sexual orientation violate the Constitution in these ways.

The idea that religious belief can allow somebody to discriminate against others is a large ask and, if the Supreme Court were to make a broad enough ruling on the issue, could be a dangerous hole in civil rights law in general. For instance, as an extreme example, imagine a person who refuses to hire women based on religious belief that men and not women should work or that a woman needs a man’s permission to work. This situation, although not impossible, would take a broader ruling on the issue than the Supreme Court is likely to issue.

LGBTIt’s important to note that even Phillips himself is not arguing that for a general right to discriminate, although some particularly conservative parties who have filed amicus briefs (non-party memorandums on the case) are, but rather a loophole in discrimination law based on religious belief. At the very least the LGBT community fears that it will, even in a narrow ruling, lose some the ground it gained in the 2015 Obgerfell (ruling same-sex marriage bans unconstitutional) if everybody in a wedding from the makeup artist to the baker to the chef can refuse service on religious grounds. A ruling in favor of Phillips could also lead to challenges to sexual orientation discrimination laws across the nation, capitalizing on a ruling Colorado’s law is unconstitutional to require redrafting of these laws at a minimum.

With this in mind, the case has extreme attention from parties on both sides of the issue with around 100 parties weighing in with memorandums to the Supreme court–including the Trump Administration coming down against LGBT rights. The Trump administration’s position backs Phillips’ “cake as speech” arguments but does not address the Free Exercise Clause arguments. With the matter finally coming to a head, let’s look at the Supreme Court’s reaction here, the merits of the arguments, and what is likely to happen here.

The Arguments Before the Supreme Court

The situation as the case went into oral arguments was a common one for LGBT issues, and many issues in general appearing before the Supreme Court. The court was clearly split 4-4 along ideological lines with Justice Kennedy almost certainly representing the swing vote on the issue. Justice Kennedy has authored most pro-LGBT rulings the Court has passed, including Obgerfell, but also is known to have a strong tendency towards protecting religious rights.

Phillips’ lawyer and the lawyer for the Trump administration argued to the Court that religion should allow a loophole to discrimination laws on all grounds except race, quite a ambitious position considering the state of the law we will discuss later in the article. However, Phillips’ lawyer limited his argument to making custom cakes as opposed to providing pre-made cakes–citing a difference in the level of creativity involved to support an assertion that making a cake is protected speech. This an odd position, not only is the idea that a commercial cake is speech a hard sell, there’s no evidence that the couple asked Phillips to make a cake as opposed to just sell them a premade one.

The assertion that cake making was a form of protected expression, creative expression as opposed to a more utilitarian food making practice, faced a fair a bit of skepticism from the court as well. The argument that a custom wedding cake is a temporary sculpture faced criticism as Phillips’ lawyer also argued that a chef, makeup artist, jeweler, hairstylist, or tailor at wedding would not rise to the level of expression of a wedding cake baker. This led to criticism of the position by several of the Justices. Justice Breyer stated that a ruling in favor of Phillips had the potential to “undermine every civil rights law” while Justice Kennedy said that such a ruling would essentially amount to granting almost every business involved in a wedding the right to boycott gay marriage. Phillips’ lawyer, in response to questioning from Justice Kennedy, tried to argue the issue as exclusive to custom cakes.

The Justices questioned cakes as a creative outlet, wondering if they were more based on the utilitarian needs of eating them. While Justice Breyer floated Phillip’s lawyer a line, discussing the protection extended to utilitarian architecture decision, Phillips argued that buildings were more functional–likely fearing a follow-up line of questioning regarding housing discrimination that might be allowed by a ruling taking this line of reasoning. Justice Breyer responded “So, in other words, Mies or Michelangelo…is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding? Now, that really does baffle me, I have to say.”

Kennedy, the linchpin vote on the issue, described the potential of allowing a boycott of gay weddings as an “affront to the gay community.” However, he also argued that tolerance of religious beliefs is equivalent in value to tolerance of sexual orientation–leaving little clues as to what his ultimate decision on the issue will be.

The Merits of the Arguments

On the face of it, Phillips’ has a losing argument. There are two substantial hurdles the case would need to overcome. First, whether baking a custom cake is speech in the first place. Second, whether the discrimination laws are designed in a way that merits a strict look at their constitutionality. The first is a question that the case may not be able to overcome, but it is nowhere near the difficulty of the second hurdle.

The general rule is that laws that apply neutrally to all parties and without regard to content of speech, such as Colorado’s discrimination laws, are constitutional even in the face of an incidental effect on certain religious (or other) views. This is a well established element of constitutional law and one that was fiercely defended by the late Justice Scalia–discussing the alternative as a situation where “every citizen [becomes] a law unto himself. The laws do not target religious business, they place discrimination rules on everybody who chooses to enter the commercial marketplace. This does not change if you sell an artistic product.

The Supreme Court itself ruled in 1990 that the Free Exercise Clause of the First Amendment does not apply when a law is neutral and generally applicable. Some critics on the case have argued that a previous Colorado ruling, upholding a bakers refusal to sell a cake including an anti-LGBT message from Leviticus, undermines the neutral application of the law. However, this case did not deal with sexual orientation based discrimination at all. It dealt with religious discrimination and does not impact a neutral application analysis. What’s more, the bakers in that case did not refuse service to any given religion as a whole–they simply refused to write a message they found offensive. The case as a whole has no relevance whatsoever to sexual orientation based discrimination. Colorado’s law applies neutrally and without exceptions, an important fact as exceptions to the law could undermine a constitutionality analysis.

Even assuming a cake is artistic expression, the cake itself may be protected by the First Amendment but the sale of the cake is not. The argument that sale to a gay wedding is speech to the public implying you support gay marriage is a very weak one. To draw a comparison to an older case, in 1968 the Supreme Court called a barbeque stand in Colorado describing racial discrimination laws as a violation of their anti-integration beliefs as “patently frivolous.” If you won’t sell to somebody based on race, gender, sexual orientation or any other protected characteristic you have the option that Phillips ultimately took, don’t enter the market. Since the case was brought against him, Phillips has stopped selling custom wedding cakes.

What Might the Supreme Court Do?

There is an extra element here beyond the 1968 Supreme Court case, free exercise of religion. This is not a strong argument on the merits, but it does have a history of making a difference in Supreme Court cases and particularly for Justice Kennedy. Just a few years ago in 2014 we saw Burwell v. Hobby Lobby decide that for-profit corporations could be exempted based on religious objection if a law could be done in a less restrictive means while still furthering the government’s interest. This is less applicable here, as Justice Kennedy noted a loophole of the sort Phillips’ seeks could lead to a near complete undermining underlying government purpose of the protections of Colorado anti-discrimination law and the Obgerfell ruling by allowing a boycott of sales and services for gay weddings. However, it is important to keep this sort of case in mind as it is not impossible that the Supreme Court may go this direction again.

Other recent court rulings may support the couple here. Earlier in 2017, the Washington State Supreme Court ruled that flower arrangements don’t qualify as protected speech–there’s a real potential the Supreme Court may go the same way on cakes.

So what will the Supreme Court do? They almost certainly will not rule the Colorado discrimination law to be unconstitutional. The actual ruling will come down to what Justice Kennedy decides and could go several ways. Justice Kennedy has voiced some support for the position of the Free Expression Clause as a potential loophole to discrimination laws. A general loophole to discriminate against all LGBT persons based on religion is so fundamentally opposed to the state of the law that it is incredibly unlikely to occur. However, there is a possibility that the Court will provide a narrower loophole exclusive to weddings. This still runs counter to the existing state of the law, but given the positions taken by the Court in oral arguments it is a possibility.

Justice Kennedy has also expressed disappointment with the treatment of religion by the Colorado Civil Rights Commission, specifically the fact the Commission described the use of religion to justify discrimination as “despicable.” The Supreme Court may end up choosing to send the case back down to the lower courts with some level of guidance.

Finally, there is a very real possibility, given the state of the law and Justice Kennedy’s response in oral arguments and history on LGBT rights cases, that the Supreme Court will simply hand Phillips his final loss. The truth is that any of the above rulings, besides simply telling Phillips he has no case, would represent a substantial expansion on the current treatment of the Free Exercise Clause–one with the potential to seriously undermine both LGBT rights and civil rights in general. Even drawing the outline around what sort of commercial actions count as speech could be a substantial change in the state of the law, turning everyday business transactions into protected speech. For now, we will have to wait and see how the Supreme Court cuts this cake.

Jonathan Lurie

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