By Erin Morsino
This morning, I had the honor of attending oral argument before the U.S. Supreme Court. The case being argued today was Masterpiece Cakeshop v. Colorado Civil Rights Commission, commonly referred to as the "Gay Wedding Cake Case."
The case involves a humble Christian baker, Jack Phillips, in the sleepy town of Lakewood, Colorado, who received a phone call one day to create a custom wedding cake for a gay marriage celebration. Jack Phillips responded by inviting the couple to purchase any goods in his bakery, but declined to create a custom cake for the celebration because his Christian values forbid him from promoting gay marriage.
Five years, a plethora of fines and penalties from the State of Colorado, and several boycotts later, the state of Colorado is still forcing Phillips to make such cakes, and he finds himself fighting in the nation's highest court for his First Amendment freedoms of speech and religious exercise. The couple who called Phillips ended up receiving their wedding cake for free from a different baker. The cake was a replica of the rainbow flag to celebrate the gay rights movement.
(The Great Lakes Justice Center submitted a friend of the court brief to the Supreme Court that can be found here.)
This morning's case demonstrates the entanglement of public accommodation laws and fundamental American freedoms. Passions run skyscraper-high on both sides of the argument, but today's oral argument began with a polite question from Justice Ruth Ginsburg trying to clarify whether it makes a difference that the cake at issue in the case was specifically commissioned for a gay wedding and not purchased off the shelf.
A great deal of confusion followed, and then Justices Elena Kagan and Sonia Sotomayor administered a pop quiz naming foods, art, buildings and creative enterprises, demanding to know if the objects or general categories of study are expression — and therefore protected speech — under the First Amendment.
At one point, Justice Clarence Thomas covered his face with his full palm at the incomplete responses and failures to get to the relevant issues.
Unfortunately, the oral argument did not start becoming coherent until the Solicitor General spoke. He framed the issue in the case in its reality: whether the state may compel business owners to express certain viewpoints — here, a viewpoint fundamentally against one's religious convictions.
Justice Anthony Kennedy passionately demonstrated his support of gay rights and questioned whether ruling in Phillips' favor would allow shop owners to post signs in their windows, like "no gays allowed" or "no cakes for gay weddings." Justice Stephen Breyer declared that ruling in Phillips' favor would create chaos to the principal of non-discrimination.
The Solicitor General ended his argument by reminding the Court that prohibiting a State from forcing its citizens to adopt messages with which they fundamentally diagree is the very core of what the First Amendment protects. It is at this point that hope for Phillips finally begins to swell.
Chief Justice John Roberts asked the attorney representing the Colorado Civil Rights Commission about whether Catholic Legal Services should be compelled to represent same-sex couples against their religious beliefs or if they should be forced to close its doors. The attorney skirted the question.
Justice Kennedy then rattled off sections from the record that show the commission's bias toward Phillips' sincerely held religious beliefs, and, in the most important moment of the argument, commented that Colorado has not been tolerant toward Phillips.
And there it is, the crux of the case: tolerance. Should a State be tolerant of its citizens' religious beliefs, or may it disallow certain beliefs with which it disagrees and punish those beliefs?
The next attorney from the ACLU brazenly began his argument: "We don't doubt the sincerity of Jack Phillips' religious convictions. He apparently just believes and advocates that those beliefs should be violated and condemned."
The attorney even argued that the State should force a baker to write on a cake "God bless" the same-sex marriage participants by name, regardless of whether such a statement violates the baker's personal convictions. The statement shows that the State is targeting and compelling speech.
Justice Kennedy spoke to clarify the position set forth in his opinion in Obergefell v. Hodges, where the justice not only voted to legalize same-sex marriage, but wrote the 5–4 majority opinion. Today, however, Justice Kennedy questioned if a Christian person, who serves all sexual orientations and holds no animus whatsoever against gay people, but cannot create a cake or participate in a same-sex wedding owing to his sincerely held religious beliefs — may that person escape persecution from the State?
After observing the oral argument, I believe there will be four votes "yes" (Justices Alito, Gorsuch, Thomas and Roberts), and four votes "no" (Justices Sotomayor, Kagan, Ginsburg and Breyer). I am praying that Justice Kennedy casts the last "yes" vote in the case to tilt the scales in favor of something that has thus far been missing in the case: in favor of tolerance, even for Christians.