Here is a negative view:
Here is a positive view:
The Masterpiece Cakeshop case seems like one that should never have reached the Supreme Court. I read one analyst express that, given that a similar case was not accepted for review by the Supreme Court a few years ago (a 2014 case involving a photo studio that was found to have violated state law by refusing service for a gay wedding), it was surprising that certiorari was granted in this case without Scalia’s vote – you need four votes to get your case before the court, and their assumption was that Scalia would have voted to review and reverse this kind of case. I would not be surprised if that assumption is incorrect – that as much as Scalia might have personally wanted to reverse the case based upon his own beliefs, he might have withheld his vote due to the difficulty of actually creating a standard for evaluating “religious liberty” claims when people start using them as an excuse for discrimination.
The arguments in favor of the cake shop, to me, are not convincing.
I am not convinced that people viewing or eating cake at a wedding interpret the cake as in any way reflecting what the cake shop believes about gay marriage.
I am not convinced that this was about creative expression, as the cake shop took a position that would seemingly apply to a rectangular sheet cake frosted in unadorned white frosting, or even an unfrosted cake.
I don’t see this as equivalent to a cake shop declining to adorn a cake with symbolism that the shop owner found offensive (e.g., swastikas or confederate flags) as there is no indication that the couple seeking to purchase the cake wanted any unusual imagery on the cake; nor is that a religious freedom argument. The customers were denied a cake because they were gay, not because they wanted an unusual or potentially offensive cake.
The distinction that some have made, that it’s different than using religion to justify discrimination against (for example) interracial marriage because you can’t control your race are not likely to gain any traction in the Supreme Court, although they reflect a lingering anti-gay belief among some people that being homosexual is a “choice”.
I don’t agree with the slippery slope argument that if you require a cake shop that serves the general public to sell a cake to a couple for their gay marriage, then every creative enterprise and every professional can similarly be compelled to provide work or services for causes that they personally oppose.
The issue of artistic expression proved problematic for the cake shop’s lawyers:
Justice Elena Kagan led the charge, asking Waggoner whether a hairstylist or a make-up artist could cite his religious beliefs as the basis to refuse to provide services for a same-sex wedding. When Waggoner responded that they could not, Kagan pushed back. The make-up artist is an artist, she stressed, and could feel the same way about his craft as Phillips does. Waggoner countered that doing someone’s make-up is not speech, prompting Kagan to retort that “some people might say that about cakes.” And Kagan expressed disbelief that a baker’s craft is expression but a chef’s, according to Waggoner, is not.
Alito joined the fray with what seemed to be a softball question for Waggoner, asking her whether architectural designs would be protected even though people live in the buildings for which they serve as the basis. Waggoner said that they would not be, which seemed to surprise Breyer. So a masterpiece by Michelangelo would not be protected, but a cake without any message on it would be, he asked? “That really does baffle me,” Breyer said.
Justice Roberts seemed inclined to find Colorado’s law to be overly broad:
Chief Justice John Roberts seemed to be squarely in Phillips’ corner. He asked Colorado Solicitor General Frederick Yarger, representing the state, whether Catholic Legal Services, which provides legal services to all different faiths, could refuse to take on a case involving same-sex marriage on the ground that it violated the group’s religious beliefs. Under Colorado law, Roberts suggested, the group would face an unpalatable set of choices: It could either stop providing any legal services at all or it could provide services that include same-sex marriage. And he reminded David Cole, representing Craig and Mullins, that, in its 2015 decision establishing a right to same-sex marriage, the court went “out of its way” to note that “decent and honorable people” may oppose same-sex marriage.
While that argument suggests that Roberts intends to vote in favor of the cake shop, it could turn out to be a more modest decision than the cake shop’s fans desire. That is, it could turn out to be a finding that Colorado’s law is overly broad because it potentially extends to organizations like Catholic Social Services, but leave open the possibility that a revised law will be constitutional even if it continues to require businesses like the cake shop that are open to the public to serve the entire public.
Justice Kennedy focused on a single statement by a single member of the Colorado Civil Rights Commission “noted that religious beliefs had in the past been used to justify other forms of discrimination, like slavery and the Holocaust”, a comment that he characterized as carrying an anti-religious sentiment. Kennedy also joined in a line of questioning suggesting that he disagreed with the remedies ordered by the Civil Rights Commission. That raises the possibility that Kennedy prefers to kick the issue back to Colorado based upon the possibility that the commission made its decision as a result of anti-religious bias. Such a remand would allow the court to avoid addressing the difficult issues raised by the case.
In terms of the consequences of allowing this type of discrimination for businesses like a cake shop, the Justices who were skeptical of the law had the strongest arguments.
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.
If you care that a rule be protective of people who don’t fit into a traditionally protected class – and these issues extend far beyond gay weddings – it seems like it will be extremely difficult to create a standard by which it could be determined which merchants and service providers’ work contained a sufficient creative or expressive element that they could deny service on the basis of how the use of their work might ostensibly carry a message inconsistent with their religious beliefs.
On a final note, it is possible for a shop like Masterpiece to operate and discriminate without running afoul of the law – by not offering its services to the general public. It could, for example, limit sales to only those customers whose weddings were to be held at a specific list of churches, and select only churches that don’t perform gay marriages. It’s problem is that it wants the benefit of offering cakes for sale to the general public, but then to invoke religion to discriminate against some members of the public.