Masterpiece Cakeshop: The Slope Is, in Fact, Slippery (National Review)
The case forces us to ask how far we want anti-discrimination laws to go.
Background: While the baker, Jack Phillips, owner of Masterpiece Cakeshop, appealed the decisions against him based on both Freedom of Speech and Freedom of Religion grounds, the Court accepted the case for only Freedom of Speech.
SCOTUS for law students: Splitting the free speech community (SCOTUS blog)
First, it may be helpful to give a quick summary of the core arguments in the case. Lawyers for Masterpiece Cakeshop and the baker, Jack Phillips, maintain that his wedding cakes are a form of creative expression and that he cannot be compelled by the government, in this case the Colorado Civil Rights Commission, to create expression with which he disagrees. Lawyers for Colorado and for the now-married, same-sex couple, Charlie Craig and David Mullins, argue that the state civil-rights law prohibits discriminatory business practices, such as refusing to sell a cake because of disagreement with same-sex marriage. Any burden on the baker’s free speech is incidental and allowed by anti-bias laws, they maintain.
This disagreement is not surprising. What is perhaps unusual is that there are free-speech advocates on both sides.
In the courtroom:
Kristen Waggoner, arguing for Masterpiece Cakeshop of Colorado, made the argument that the baker “intended to speak through that cake” and that when the cake maker bakes, “he is creating a painting on that canvas that expresses messages” — and is covered by the First Amendment.
When asked who else in weddings that couples may employ could refuse services due to protected free speech, Waggoner's responses to Justices' examples:
Justice Ginsberg:“The person who does floral arranging. Would that person also be speaking at the wedding?”
Waggoner: "Yes. if they are custom-designed arrangements.”
Ginsberg: “How about the person who designs the invitation to the wedding or the menu for the wedding dinner?”
“Certainly.”
Justice Elena Kagan: “The jeweler?”
"Possibly."
“Hairstylist?”
“Absolutely not.”
Kagan: “The makeup artist?”
Waggoner said that the makeup artist would not be speaking — neither would the wedding tailor or the chef.
Kagan: “The baker is engaged in speech, but the chef is not engaged in speech?”
Solicitor General Noel Francisco, also arguing for the cake maker, said that the first question was whether “the cake rises to the level of speech.”
Justice Kennedy asked Francisco that, if the court were to grant such a right, would a store owner with religious objections be able to post a sign in the window stating that gay couples are not served?
Francisco answered "Yes" 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 to send a message that they fundamentally disagree with. And that is the core of what the 1st Amendment protects.”
Justice Kennedy:
"The problem for you is that so many of these examples ... do involve speech. It means that there's basically an ability [for businesses] to boycott gay marriages."
Justice Breyer:
"We're asking these questions because we want some kind of distinction that will not undermine every civil rights law from the Year Two, including African Americans, including the Hispanic Americans, including everybody who has been discriminated against in very basic things of life, food, design of furniture, homes and buildings.”
David Cole, legal director for the American Civil Liberties Union, who was representing Charlie Craig and David Mullins. said, when the couple stopped by the Masterpiece Cakeshop, Jack Phillips refused to make them a custom cake for their reception because the Bible said marriage was limited to a man and a woman".
Cole said the dispute did not involve words or speech. “The only thing the baker knew about these customers was that they were gay. There was no request for a design. There was no request for message. He refused to sell any wedding cake. And that’s identity-based discrimination.”
Colorado, like 21 other states, says businesses that are open to the public may not deny equal service to customers because of their race, religion, nationality or sexual orientation.