FAN 171 (First Amendment News) Masterpiece Cakeshop Case: Oral Argument Summary & Resources’ Roundup
The tone and nature of Kennedy’s questions suggest that he is inclined to rule for the baker. But his ruling would effectively still be a win for gay rights laws. Kennedy can hold that CADA itself — like hundreds of other civil rights protections — remains completely valid. But this particular proceeding, he might conclude, was infected by anti-religious bias.– Craig Konnoth, Wash. Post, Dec. 6, 2017
It appears there will be a closely divided court, and the majority will try to craft a narrow compromise between equal dignity and religious belief., — Roberta Kaplan, The Advocate, Dec. 6, 2017
The information below consists of a topically organized set of excerpts from oral arguments in the Masterpiece cake case that was argued in the Suprme Court yesterday. Following that is a roundroup of recent articles.
- Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
- Transcript of Oral Arguments
- ABA Collection of Briefs
- Colorado Court of Appeals opinion
Counsel
- Counsel for Petitioners: Kristen K. Waggoner
- Counself for Amicus, supporting the Petitioners: Noel J. Francisco, Solicitor General, Dept. of Justice
- Counsel for Private Respondents: David Cole, National ACLU
- Counself for State Respondent: Frederick R. Yarger, Solicitor General, Denver, Colorado
Excerpts from Oral Arguments
Note: In the name of breveity, the excerpts that follow often leave out replies to the questions asked.
Premade Cakes
Ginsburg: “What if it’s an item off the shelf? That is, they don’t commission a cake just for them but they walk into the shop, they see a lovely cake, and they say we’d like to purchase it for the celebration of our marriage tonight. The Colorado law would prohibit that. Would you claim that you are entitled to an exception?” (Trans.: pp. 4-5)
Kennedy: “[I]f you agree that it’s speech, then why can he not refuse to sell the cake that’s in the window according to Justice Ginsburg’s hypothetical?” (Trans.: p. 5)
Waggoner: “Well, in the context of if it’s already been placed in the stream of commerce in a public accommodation setting, his speech has been completed. . . .” (Trans.: p. 6)
Kennedy: “Suppose the couple goes in and sees the cake in the window and the cake has a biblical verse. Does he have to sell that cake?” (Trans.: p. 8)
Roberts: “There’s no -there’s no compulsion of speech, but if he is required to sell a cake in the window with the message already on it, that is compelling him to associate that message with the ceremony. And I thought that was something to which you objected.” (Trans. p. 9)
Kagan: “[A] couple comes in, a same-sex couple, and says it’s our first-year anniversary, and we would like a special cake for it. Can he then say no? No cake?” (Trans. p. 38)
Sotomayor: “Let’s assume this couple did come in and wanted the rainbow cake. . . . And this gentleman says one of two things: If you’re same-sex, I’m not going to provide you with a rainbow cake or I don’t create rainbow cakes for weddings because I don’t believe in same-sex marriage. I’m not going to sell it to you. I’m not going to sell it to a same — a heterosexual couple. I just don’t want to be affiliated with that concept of rainbowness at a wedding, any kind of wedding. . . . So what are the difference in treatment?” (Trans. p. 61)
Yarger: “Justice Sotomayor, in that latter case, if that truly a product he wouldn’t sell to any other customer, he would not have to sell it to this customer. But if it’s a question of a cake he would sell to any other customer, he cannot say I have a very strong objection to interracial or interfaith marriages and I don’t want to send message about those — those events, and so I’m not going to sell it to you. That’s discrimination. It wouldn’t be appropriate under Colorado law, and it would be a First Amendment objection.” (Trans. p. 62)
Word Messages
Alito: “So if someone came in and said: I want a cake for — to celebrate our wedding anniversary, and I want it to say November 9, the best day in history, okay, sells them a cake. Somebody else comes in, wants exactly the same words on the cake, he says: Oh, is this your anniversary? He says: No, we’re going to have a party to celebrate Kristallnacht. He would have to do that?” (Trans. p. 68)
Expressive Conduct
Alito: “Are the words on the cake expressive conduct or are they not speech?” (Trans. p. 80)
Cole: “Your Honor, that is regulated by Colorado here is not the words on the cake. The conduct that -that Colorado regulates is the sale by a business that opens itself to the public, invites everybody in, it’s — it’s regulating the conduct of refusing a transaction . . . to somebody because of who they are.” (Trans. p. 80)
Cole: “It doesn’t matter whether it’s speech or whether it’s not speech.” (Trans. p. 80)
Alito: “But you just said, and I understand Mr. Yarger’s position for Colorado to be the same, is that someone can be compelled to write particular words with which that person strongly disagrees.”(Trans. p. 81)
Cole: “If he has written the same words for others, and the only difference is the identity of the customer, yes, so, again, a baker could sincerely believe that saying happy birthday to a black family is different from saying happy birthday to a white family, but we would not say that, therefore, it is permissible for a baker to say: birthday cakes for whites only.” (Trans. p. 81)
Alito: “So somebody comes to one of these services and says: You know, we’re not good with words, but we want you to write wedding -a vow — 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, but we’re going to try to live our lives to make the world a better place. 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?” (Trans. p. 82)
No Request for Design
Cole: “There was no request for a design. There was no request for a message. He refused to sell them any wedding cake. And that’s identity-based discrimination. It is not a decision to refuse to put particular words on it.” (Trans. p. 77)
Messages Conveyed: Identity of Customer / Identity of Baker
Gorsuch: “The state seems to concede that if it were the message, your client would have a right to refuse. But if it — the objection is to the person, that’s when the discrimination law kicks in. That’s footnote 8 of the Colorado Court of Appeals’ decision. I know you know this. So what do you say to that, that actually what is happening here may superficially look like it’s about the message but it’s really about the person’s identity?” (Trans. p. 24)
Gorsuch: “[Assume we have a case involving the] Red Cross, and the baker serves someone who wants a red cross to celebrate the anniversary of a great humanitarian organization. Next person comes in and wants the same red cross to celebrate the KKK. Does the baker have to sell to the second customer? And if not, why not?” (Trans. p. 84)
Cole: “No one is suggesting that the baker has to march in the parade, as Mr. Francisco said here. What the Colorado law requires is that you sell a product — when a — when a mom goes into a bakery and says make me a happy birthday cake for my child, and then she takes that cake home for her four-year-old son’s birthday party, no one thinks that the baker is wishing happy birthday to the four-year-old.” (Trans. p. 75)
Hair Stylists & Makeup Artisits
Kagan: “[What about a] air stylist?” (Trans. p. 12)
Waggoner: “Absolutely not. There’s no expression or protected speech in that kind of context . . . .” (Trans. p. 12)
Kagan:: “Why is there no speech in — in creating a wonderful hairdo?” (Trans. p. 12)
Kagan: “[What about] the makeup artist?”(Trans. p. 12)
Waggoner: ” No. . . .” (Trans. p. 12)
Kagan: : “It’s called an artist. It’s the makeup artist.” (Trans. p. 12)
Kagan: “[Y]ou have a view that a cake can be speech because it involves great skill and artistry. And I guess I’m wondering, if that’s the case, you know, how do you draw a line? How do you decide, oh, of course, the chef and the baker are on one side, and you said, I think, the florist is on that side, the chef, the baker, the florist, versus the hairstylist or the makeup artist? I mean, where would you put a tailor, a tailor who makes a wonderful suit of clothes? Where does that come in?” (Trans. pp. 13-14)
Ginsburg: “I don’t see a line that can be drawn that would exclude the makeup artist or the hairstylist.” (Trans. p. 26)
Francisco: “[T]hat’s, of course, the question that the Court — Court has to answer at the threshold of every Free Speech Case. Is the thing that’s being regulated something we call protected speech? I think the problem for my friends on the other side is that they think the question doesn’t even matter. So they would compel an African American sculptor to sculpt a cross for a Klan service.” (Trans. p. 26)
Kennedy: “But the problem for you is that so many of these examples — and a photographer can be included — do involve speech. It means that there’s basically an ability to boycott gay marriages.” (Trans. pp. 26-27)
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