Supreme Court Report

Speech, religion and bias all weighed in Masterpiece Cakeshop case

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Kristen K. Waggoner of the Alliance Defending Freedom, who will argue the case on behalf of Phillips, says, “What’s at stake here is whether expressive professionals will continue to have the right to create artistic expression that’s consistent with their convictions.”

Phillips received support from scores of amicus briefs in September. Two in particular stand out. One brief is from “cake artists,” and it is officially filed in support of neither party. The brief seeks to convince the court that custom cakes are indeed artistic expression, and that “wedding cakes are the most iconic examples of the cake artist’s craft.”

So rather than rely on mere words for those arguments, the brief (by law firm Baker Botts, no less) is full of vivid color photos of custom cakes for various occasions, including one styled to look like a lobster pot, another in the shape of a T-bone steak, and one shaped like a municipal bus.

Another noteworthy brief, filed on the side of Masterpiece Cakeshop, comes from President Donald Trump’s administration and was signed by then-Acting Solicitor General Jeffrey B. Wall.

Amid reports of intense disagreement within the Department of Justice (which was disputed by the department’s spokesperson), the brief argues that “forcing Phillips to create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights.”

The federal brief draws a distinction between an exemption from anti-bias laws for objections to same-sex marriage and an exemption that might be sought to laws against race discrimination.

“A state’s ‘fundamental, overriding interest’ in eliminating private racial discrimination—conduct that ‘violates deeply and widely accepted views of elementary justice’—may justify even those applications of a public accommodations law that infringe on First Amendment freedoms,” the brief says.

Lederman says this is “the first time in history that the United States has filed in favor of an exemption” to an anti-discrimination law. “The solicitor general has tried very hard to craft a very narrow theory for an exemption, although I’m not sure I understand what the limiting principles are,” he adds.


Louise Melling, deputy legal director of the American Civil Liberties Union, which is representing Craig and Mullins, says the case is about the fact that “you have a business that opened its doors to the public and decided to offer a product,” she says. “If you choose to offer cakes, you can’t pick and choose to whom you sell your cakes.”

The free speech argument “would allow you to turn people away for any reason, providing you contend you have some expressive message,” Melling says. “It is a really radical argument to say that the Constitution protects your right to discriminate.”

Gregory G. Garre, a former U.S. solicitor general under President George W. Bush and a partner at Latham & Watkins in Washington, D.C., says the case starkly presents two competing narratives, both of which will likely aim at the center of the court: Justice Anthony M. Kennedy.

“This is a case where we are likely to have a court of one: Justice Kennedy,” says Garre, who is not involved in the case. Competing for Kennedy’s vote will be two ideals evinced in his majority opinion in the 2015 case Obergefell v. Hodges, which held that states must license and recognize same-sex marriages.

One ideal, of course, is the idea that the 14th Amendment protects same-sex couples seeking same-sex marriage.

The other rests on Kennedy’s observations in Obergefell that “many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises,” and that “those who adhere to religious doctrines may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”

Yaakov Roth, a partner at Jones Day in D.C. who also isn’t involved in the case, says in Masterpiece Cakeshop, “we have two aspects of Justice Kennedy’s jurisprudence that are being pitted against each other.”

This article appeared in the November 2017 ABA Journal magazine with the title "Cake Talk: Court to address whether baker who refused to create wedding cake for same-sex couple violated anti-discrimination law."

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