Analysis Law and Policy

Cakes for the Klan? Conservatives Craft a Trojan Horse in Supreme Court’s LGBTQ Discrimination Case

Jessica Mason Pieklo

The Supreme Court on Tuesday considered whether a baker can refuse to bake a cake for a same-sex couple. As always, all eyes are on Justice Anthony Kennedy.

Conservatives have for decades tried to weaponize the First Amendment. In 1983, the evangelical Bob Jones University lost its bid to keep its tax-exempt status while denying admissions to members of interracially married couples. The school argued that admitting those students violated the university’s Christian mission because, it said, the Bible prohibits interracial marriage.

The U.S. Supreme Court disagreed and ruled that religious objections can’t trump civil rights laws.

The Court on Tuesday heard arguments in Masterpiece Cakeshop v. The Colorado Civil Rights Commission, a case that could turn that decades-long precedent on its head.

In July 2012, Charlie Craig and David Mullins asked Jack C. Phillips, the owner of Masterpiece Cakeshop, to create a cake for their wedding. Phillips, who describes himself as a “cake artist,” declined and turned the couple away, telling them he opposed same-sex marriage on religious grounds and therefore could not provide them a cake. After being turned away, Craig and Mullins filed a complaint under Colorado’s anti-discrimination law, which bans discrimination based on sexual orientation in public commerce. Phillips, in turn, argued that the non-discrimination law violated his First Amendment free speech and free exercise rights.

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The Colorado Civil Rights Commission investigated the complaint and found Phillips had violated the law by turning away the couple. Phillips appealed to the Colorado Court of Appeals, which upheld the commission’s finding. Phillips then appealed to the Colorado Supreme Court. That court refused to take the case, leaving the appeals court ruling in place.

Instead of complying with the Colorado courts, Phillips stopped making cakes and appealed to the Roberts Court. After conferencing on Phillips’ request to take the case 19 times, the Court agreed to do so last summer. 

Phillips, represented by the conservative litigation advocacy organization Alliance Defending Freedom (ADF), argues that the commission’s order to design cakes for the couple violates his free speech rights because it forces him to communicate a message with which he disagrees—in this case, supporting marriage equality. Phillips claims that as a “cake artist,” he speaks through his cakes and designs them “for the purpose of celebrating his clients’ marriages.” That means that whenever he bakes a cake, that cake “necessarily express[es] ideas about marriage and the couple.” 

Attorneys for Craig and Mullins disagree and argue that the commission’s order does not violate free speech because as a commercial regulation, the law only affects Phillips’ free speech rights incidentally. The law doesn’t force Phillips to convey a particular message, they claim. Rather, it simply regulates a commercial exchange in a content-neutral way. They point out that the courts, including the Supreme Court, have repeatedly upheld other civil rights ordinances like Colorado’s in the face of similar legal attacks by religious conservatives.

Tuesday’s arguments, not surprisingly, provided few clear answers as to how the Court will rule.

Kristen Waggoner from ADF was first up Tuesday before the Court. Waggoner had barely gotten a sentence out before several justices jumped in with questions. Justice Anthony Kennedy asked if Phillips was expressing himself in baking a cake. Before Kennedy could finish his question and Waggoner could answer, Justice Sonia Sotomayor interrupted to push Waggoner if it mattered that a cake was a pre-prepared cake. Yes, Waggoner said, because a pre-prepared cake would not express a viewpoint, but a custom cake does. Justice Sotomayor pressed Waggoner, noting the record reflects that the couple was also looking at pre-prepared cakes and were turned away as soon as Phillips knew the couple was gay. 

Then it was Justice Elena Kagan’s turn to push the ADF attorney, asking question after question as to which “artists” are protected and which are not under the ADF’s theory of the law. Are jewelers protected from designing wedding bands for same-sex couples? What about a hairstylist? A make-up artist? “They call themselves artists!” Kagan quipped. Is that enough to avoid complying with civil rights laws?

Kagan’s line elicited laughter from the crowd, but it wasn’t a joke, as she noted. “I’m not actually kidding,” Kagan said as the laughter died down. What about the hairstylist who thinks they are communicating a specific message. Are they protected?

No, responded Waggoner. And that is because a hairstylist isn’t communicating a personal message when they style hair, even for a wedding. 

“Some people would say that about cakes,” Kagan responded. 

Sotomayor followed Kagan’s point. “There are sandwich artists,” she noted. What about them?

The point Kagan and Sotomayor were trying to drive home is that the legal test is not whether the individual believes they are an artist communicating a message. Instead, the law requires courts to look at the purpose of the alleged act, in this case, baking a cake, and ask whether the state is compelling a particular message or whether the law being challenged as a violation of free speech rights is a neutral and generally applicable law that incidentally impacts speech.

The purpose of a cake, Sotomayor said, is to be eaten. Eating a cake is not protected speech any more than baking one is.

Then came U.S. Solicitor General Noel Francisco to the podium to argue on behalf of the Trump administration’s support of Phillips. Francisco is no stranger to the culture wars or to ADF. Francisco has been affiliated with the legal advocacy organization, a fact he failed to disclose and a fact ADF was desperately trying to scrub prior to arguments, lest there be an appearance of bias from the federal government. 

There was no appearance of bias during Francisco’s case. The bias was front and center to the administration’s arguments. Francisco insisted that under the Colorado law, a Black baker would be forced to create a cake for the Ku Klux Klan. This is a point the conservative justices jumped on, despite knowing that the KKK is not a protected class and therefore not subject to the same anti-discrimination protection as a same-sex couple. 

I’ll go out on a limb and say that the conservative justices know the KKK is not a protected class. And ADF went to great lengths to insist refusing services to LGBTQ couples is different than refusing services to Black people, or to interracial couples. But under public accommodations law, it really isn’t. So if the law isn’t on your side and neither are the facts, lawyers do what the conservative justices did here and craft a Trojan horse that for them is hopefully big enough to sweep up Justice Kennedy.

Where Justice Kennedy falls is of course the question of the case. In almost every sense his legacy is on the line. Masterpiece Cakeshop is at the intersection of that legacy, where Kennedy tries to balance the dignity of the LGBTQ population and those “honorable and decent” people with sincerely held religious objections to marriage equality.

In other words, Masterpiece Cakeshop is one part Obergefell v. Hodges and one part Hobby Lobby v. Burwell.

So what to do about a problem named Kennedy? During arguments he joined with his conservative colleagues and expressed a deep concern that the Colorado Commission of Civil Rights was openly hostile to religious groups in enforcing the Colorado law, an observation that could spell trouble for Craig and David Mullins’ case. He was also concerned that ADF’s position was a legally tenable one, apparently agreeing with Justice Stephen Breyer that a sweeping ruling on behalf of Phillips would spell “chaos” for civil rights laws. 

Justice Breyer is not wrong. How the Court decides the case could have major implications for LGBTQ rights as well as civil rights in general. It has the potential to hand evangelicals a sword to slice through nondiscrimination laws in upwards of 30 states and municipalities that have them—and possibly even federal civil rights protections. Masterpiece Cakeshop is the first big test of the durability of Obergefell. Taken to its logical extension, if Obergefell protects same-sex couples from discrimination with regard to marriage, the decision should guarantee same-sex couples are protected by state anti-discrimination statutes like the one at issue here.

That’s why I’m not convinced that Kennedy will fully side with Phillips here. Kennedy’s questions during oral arguments frequently sweep the ideological spectrum—it is in part why he is considered the swing vote on the bench. Reading too much into any line of questioning is a dicey proposition, even for journalists tasked with reading the Roberts Court tea leaves. 

I don’t think Kennedy is going to fully side with the liberal justices for this very same reason. His questions seemed to be searching for a middle ground, some way to accommodate both the dignity of LGBTQ couples to be free from discrimination in public accommodations and those businesses that claim a religious objection to same sex marriage.

That means a mushy-mouthed opinion from Kennedy, no matter what side he falls on and no matter the outcome of the case. And that could mean ruling for the baker in this case while refusing a clear statement of how protected LGBTQ people are in the public sphere.

Should that happen, it would be the most honest expression yet of Kennedy’s LGBTQ jurisprudence. Time and time again he has refused to clarify the constitutional protections available to LGBTQ people while at the same time insisting the state respect their dignity. Following Tuesday’s argument, he did not appear willing to shed any clarity on this issue. 

At the close of the arguments, David Cole, legal director of the American Civil Liberties Union and the attorney arguing on behalf of the plaintiffs, summed up the issue of the case. Were Craig and Mullins refused because of who they were or what they wanted? In other words, can you refuse to serve a gay couple and call it a religious belief instead of discriminating against someone because they are gay?

To put it even more simply, when is a cake just a cake and when is hate just hate?

My guess is we’ll find out sometime in June. 

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