The Supreme Court seemed closely divided Tuesday over whether the First Amendment protects a Colorado baker from creating a wedding cake for a same-sex couple, with Justice Anthony M. Kennedy likely to cast the deciding vote.
Kennedy, who wrote the court’s 5 to 4 decision in 2015 saying gay couples have a constitutional right to marry, speculated about what might happen if a decision in baker Jack C. Phillips’s favor prompted requests for bakers across the country to refuse to make cakes for same-sex couples. Would the federal government feel vindicated? Kennedy asked.
On the flip side, just moments later, Kennedy sharply questioned Colorado Solicitor General Frederick R. Yarger. The justice seemed offended by a comment made during the deliberations of the Colorado Civil Rights Commission when one commissioner said: “And to me it is one of the most despicable pieces of rhetoric that people can use to — to use their religion to hurt others.”
At times, the justices seemed to pine for a limiting principle. Can every vendor claim a right to free expression to deny patrons goods or services? On the other side, courts don’t want to start compelling bakers, florists and the rest. (And who’s to say if they give less than their full effort?) As Amy Howe of SCOTUS blog recorded, the argument at times turned comical:
Responding to the argument by Kristen Waggoner, who represented Masterpiece and Phillips, that the First Amendment bars the government from forcing people to express messages that violate their religious beliefs, Justice Sonia Sotomayor asked Waggoner dubiously when the Supreme Court has ever “given protection to food?” “Food is there to be eaten,” she said. Moreover, she added, when people look at a wedding cake, they associate it with the couple being married; if that’s the case, how can Phillips say that a cake is a medium for his expression?
Sotomayor was also worried that a ruling for Masterpiece would not only violate the dignity of same-sex couples, but could also cause real hardships. Most military bases, she noted, are in isolated parts of the United States, many of which are predominantly Christian. That means, she said, that there might only be one or two bakers to provide cakes for same-sex weddings – and a couple could be out of luck if all the available bakers cite religious beliefs as a reason to refuse to make a cake. “We can’t legislate civility and rudeness,” she concluded, but we can legislate behavior.
But many of the more liberal justices’ questions seemed to focus on trying to convince their more conservative colleagues that, even if they might be inclined to vote for Masterpiece, it would be next to impossible to write a ruling for the baker that did not, as Justice Stephen Breyer put it, “undermine every civil rights law since year 2.” They peppered Waggoner with questions about what kinds of wedding services would or would not be protected under her rule, and they rarely appeared convinced by her efforts to draw distinctions.
It’s not an easy case, if one looks to the possible ramifications of a bright-line test. If the baker always wins, would a landlord be entitled not to rent to a gay couple — or an unmarried one? Conversely, if the couple wins and has a right to equal services, will the courts become wedding planners — order the cook to prepare the meal as requested, the florist not to skimp on the flowers and the tailor not to make the groom look pudgy?
It’s anyone’s guess how Justice Anthony Kennedy will come out. As the only judge ever open to persuasion, he once again will likely be the deciding vote. While we don’t know which side will win, there are two very bad arguments (not necessarily made in legal settings) that should be rejected.
First, the “go to another baker” argument is noxious. If discrimination is allowed, others will join in. Those affected won’t find alternatives; they’ll find more barriers. And in a small, socially conservative town, this generation’s Lester Maddox will seek to expand refusals to serve, grandstanding on bigotry and making a virtue out of the vice of prejudice.
Second, it’s not accurate to call the cake a “gay wedding cake.” This couple wanted the very same cake that heterosexual couples get. Arguments that we shouldn’t force kosher delis to serve pork are silly and downright offensive. The Masterpiece Cakeshop case is about selling the very same item to some customers and not to others.
Moreover, the baker isn’t being asked to condone or physically participate in the wedding. (By the way, what religious precept says that one can’t sell goods to gay people? What if the cake buyer lies and says it’s for a straight couple — do they get interrogated?) If every act of commerce becomes a judgment on the buyer’s lifestyle or beliefs, we’re going to wind up even more polarized than we are. Listen, a restaurateur is not asked to endorse mixed-race marriage by seating a mixed-race couple in his restaurant. It’s odd that conservatives, of all people, want to politicize commerce. The glory of the marketplace is that anyone with money, regardless of religion or race or ethnicity, gets to partake in commerce.
As a side note, we note that the vast majority of Americans oppose refusals to serve. A recent poll by the Public Religion Research Institute found: “A majority (53%) of Americans oppose allowing businesses that provide wedding services, such as catering, flowers, and wedding cakes, to refuse services to same-sex couples, compared to about four in ten (41%) who say they would support allowing these wedding-based businesses to refuse services to same-sex couples for religious reasons.” However, “White Protestants are unique to the extent they believe wedding-based businesses should be allowed to refuse serving same-sex couples. Nearly two-thirds (65%) of white evangelical Protestants and nearly half (49%) of white mainline Protestants believe businesses that provide wedding services should be allowed to refuse services to same-sex couples.” One wonders whether this isn’t so much about religion but rather another battle line in the culture wars, where Christian conservatives don’t want liberal elites telling them what to do.