Oral Argument in Masterpiece Cakeshop Case

Oral Argument in Masterpiece Cakeshop Case December 6, 2017

The Supreme Court heard oral arguments yesterday in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, a case that may decide whether religion provides an exemption from anti-discrimination laws that cover sexual orientation. With all the caveats about presuming too much from the questions asked and arguments made, here’s how it seems to have gone.


Amy Howe, one of the most careful court watchers out there, thinks the court is “leaning” toward a 5-4 ruling of the conservative justices, including Justice Kennedy. Kennedy, she said, “initially seemed sympathetic to the same-sex couple but later expressed real concern that Colorado had not been sufficiently tolerant of the baker’s religious freedom.” Kennedy is almost always the swing vote, but especially on cases involving gay rights because he has written the majority opinion in every single gay rights decision of the past 20 years, dramatically expanding the civil rights of LGBT people in several major cases.

With Kennedy seemingly holding the key vote, the couple and their supporters at first seemed to have reason to be optimistic. Discussing the impact that a ruling for the baker could have for gays and lesbians, Kennedy told Solicitor General Noel Francisco, who argued on behalf of the United States in support of Masterpiece Cakeshop, that if the baker were to win, he could put up a sign indicating that he would not bake cakes for same-sex couples. That, Kennedy suggested, would be “an affront to the gay community.”

But the tide seemed to shift later in the argument, as Kennedy asked Colorado Solicitor General Frederick Yarger, representing the state, about a statement by a member of the Colorado Civil Rights Commission who noted that religious beliefs had in the past been used to justify other forms of discrimination, like slavery and the Holocaust. It is, the commission member contended, “one of the most despicable pieces of rhetoric that people can use their religion to hurt others.” If we thought that at least this member of the commission had based his decision on hostility to religion, Kennedy asked Yarger, could the judgment against Masterpiece stand?

Kennedy returned to this idea again a few minutes later, telling Yarger that “tolerance is essential in a free society.” But Colorado, Kennedy posited, hasn’t been very tolerant of Phillips’ religious beliefs in this case. And, following up on Gorsuch’s suggestion that the training required of Phillips would amount to compelled speech, Kennedy commented (more than a little derisively) that Phillips would “have to teach that state law supersedes our religious beliefs.”

This is a bit baffling to me. Religious belief has, in fact, been used to justify discrimination. That isn’t hostility, it’s reality, and it’s absolutely undeniable. Why was Kennedy seemingly so bothered by a plain statement of fact that no rational person could dispute? The only question that matters here is whether our constitution and laws allow such religious exemptions. And the answer is no, they do not, or at least should not.

I have no doubt that if this case involved anything other sexual orientation, no plaintiff could get anywhere near a majority of the justices to agree that religion allows them a way out of anti-discrimination laws. If a plaintiff filed suit saying that they had a right to refuse service to an interracial couple, the outcome would likely be at least 8-1 against (with Thomas, ironically, being the only one plausibly on the wrong side, because his judicial philosophy really is that far out in right field). And you’d get 90% of the public agreeing that religion could not justify an exemption from such laws.

So why is sexual orientation discrimination any different? Part of the answer is cultural or societal — gay rights is still an active issue of dispute, while racial discrimination, at least in its more explicit forms, is not. Poll the public and virtually everyone has accepted the notion that you can’t refuse service (or refuse to hire, or rent a house) to someone on the basis of their race. But as a legal matter, the issues are identical. And therein lies the danger of this case.

If the court allows religious exemptions in cases involving sexual orientation, how can it draw a coherent and credible line against such exemptions in every other case? Poll numbers can’t be used, but that’s really the core of it. They will be left having to make a disingenuous and incoherent demarcation between sexual orientation discrimination and all other forms of illegal discrimination, which will cause more chaos for lower court judges and policymakers. Exactly what we don’t need.

No, the answer should be obvious. If you can’t engage in discrimination under the law, that should be the end of it. Your “sincerely held religious beliefs” don’t give you a “get out of the law free” card. You follow the law just like everyone else must do, full stop.

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