Written by Don Byrd

The U.S. Supreme Court heard oral arguments today in Masterpiece Cakeshop v. Colorado Civil Rights Commission. (See the Baptist Joint Committee’s statement, released following the argument). The case involves cake shop owner Jack Phillips’ claim that his rights of free speech and religious freedom entitle him to refuse to provide a cake for a same-sex couple’s wedding celebration, despite state law prohibiting businesses that are open to the public from discriminating against customers on the basis of sexual orientation.

As the BJC emphasized in a brief filed with the Court, nondiscrimination laws like Colorado’s are important means of protecting against religious discrimination in the marketplace. If the baker is allowed to act counter to such laws based upon his sincerely held religious beliefs, the brief argued, the ability of adherents of all faiths to participate equally in the marketplace may be jeopardized.

(For more background on the case and the BJC’s position, see the Masterpiece Cakeshop resource page.)

Responding to questioning by Justice Kagan, both Masterpiece Cakeshop attorney Kristen Wagonner and Solicitor General Noel Francisco seemed to concede that, yes, under their argument a baker with sincere religious objections could refuse customers on the basis of their religion, and that would be protected by the First Amendment. Here is an excerpt from the transcript:

JUSTICE KAGAN: Same case or not the same case, if your client instead objected to an interreligious [marriage]?

MS. WAGGONER: Similar to Mr. Phillips. That would be protected under the Compelled Speech doctrine if the objection is to the message being conveyed in that expression.

JUSTICE KAGAN: What if somebody comes in, it’s a baker who’s an atheist and really can’t stand any religion, and somebody comes in and says I want one of your very, very special, special cakes for a First Communion or for a Bar Mitzvah. And the baker says no, I don’t  — I don’t — I don’t do that. I don’t want my cakes to be used in the context of a religious ceremony.

GENERAL FRANCISCO: Well, what I’m saying is that when you apply these tests you first have got to decide if the cake rises to the level of speech.

JUSTICE KAGAN: It’s a special, special cake.

GENERAL FRANCISCO: Well, you know, if so, and it rises to the level of speech, then I think he has a claim just like that same baker could refuse to sculpt that cake.

At the same time, Justice Kennedy expressed his concerns that the state had not in this case treated Mr. Phillips’ religious objection with sufficient respect in their handling of his claims: 

JUSTICE KENNEDY: Counselor, tolerance is essential in a free society. 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.

Both he and Justice Breyer seemed to be searching for a solution that would accommodate the religious beliefs of a shop owner without harming the purpose of nondiscrimination laws. Justice Breyer, however, admitted, “I don’t know how to do it.”

The Court was focused primarily on the Free Speech issues, as expected. Several justices asked questions designed to determine whether cakemaking is indeed protected speech under the First Amendment, and if so, where do we draw the line between speech and non-speech? 

But they also turned to Mr. Phillips’ Free Exercise arguments, particularly when discussing with the attorney for the couple how the Court should address a scenario in which a business owner is required to attend a marriage ceremony or participate more directly in the content of the wedding.

JUSTICE KENNEDY: Suppose that either in this case or some cases you have a very complex … cake … and you need a baker, a baker’s assistant to be right there at the wedding so you cut it in the right place and the thing doesn’t collapse. Does the baker have to attend that wedding and help cut the cake?

MR. COLE: Right, right, that is not necessary to decide this case, but I think in — I think in a future case that involved physical participation in a — in a — in a religious ceremony that an individual deeply opposed, that a court — this Court might draw — might create new doctrine and draw a new line and say, no, that’s not governed by Smith. That’s not governed by O’Brien. We’re going to make an exception.

JUSTICE ALITO: There are services… that will write custom wedding vows for you and custom wedding speeches. So somebody comes to one of these services and says… we want you to write … vows for our wedding, and the general idea we want to express is that we don’t believe in God, we think that’s a bunch of nonsense… And the — the person who is writing this is religious and says: I can’t lend my own creative efforts to the expression of such a message. But you would say, well, it’s too bad because you’re a public accommodation. Am I right?

MR. COLE: What I would say, Your Honor, is that if that case were to arise, it would certainly be open to this Court to treat it differently, but this is not a case in which anyone is being asked to -­

JUSTICE KENNEDY: On what — what principle would we use to treat it differently?

MR. COLE: I think the principle would have to be some amendment to Smith versus Employment Division to say that even where there’s a generally applicable law, and even where it’s neutrally applied, if it has the effect of compelling somebody to engage in a religious ceremony that is against their deep religious commitment, we might treat that differently, but under current law -­

CHIEF JUSTICE ROBERTS: Is that — is that a modification of Smith? It sounds like an overruling of Smith.

MR. COLE: Well, I think it would depend on how broadly you wrote it, certainly. But — but I don’t think in this case, where all that’s asked for is a product, that you have to reach that question. . . .

JUSTICE SOTOMAYOR: How do you deal under your hypothetical with hotels associated with weddings? You know, hotels rent out banquet hauls, their staff. Would they be entitled to the exception you are imagining?

MR. COLE: No. And I’m not — let me say — let me make it clear. I am not advocating -­

JUSTICE SOTOMAYOR: You’re not advocating this?

MR. COLE: — this exception at all. I am saying that this case does not involve that kind of participation, and so you don’t need to address it.

The Court is expected to issue a ruling sometime next year. For more background on the case and the BJC’s position, see the Masterpiece Cakeshop resource page.