In Gay Wedding Cake Case, Equal Rights at Stake

      Every trial lawyer knows the key to success in the courtroom is a good story to engage the sympathy of jury, judge, or both. So the opposing parties in the gay wedding cake case at the Supreme Court rushed from the courtroom last Tuesday [Dec. 5] to waiting news cameras and microphones to try to sell their competing stories of victimhood to the American public.
      Charlie Craig and David Mullins, the gay couple turned away five years ago in their search for a cake for their pre-wedding reception, introduced themselves as "regular guys" with no agenda other than a desire to be treated equally, as Colorado law seemingly requires. Craig and Mullins had come to Jack Phillips' Masterpiece Cakeshop in the Denver suburb of Lakewood that summer day because they liked the cakes Phillips had displayed in the bakery's catalogue.
      At the other end of the sidewalk, Phillips was explaining that he had "respectfully" declined to make a cake for the couple once he learned that the cake was to celebrate a wedding that his Christian faith prohibited. Down at the other end, Mullins recalled that he and Craig were "stunned" by Phillips' refusal and still pained by "the memory of the humiliation, the mortification."
      Craig's mother had accompanied the couple to the bakery and attested to her son's shock that day. "I saw that my grown son was starting to shudder," Debbie Munn recalled. "We don't want another couple to go through"  that kind of treatment, Mullins said as he wrapped up the news scrum.
      Down the sidewalk however, Phillips was himself donning the cloak of victimhood. He and his family had suffered years of "harassment" after having been found to have violated the state's civil rights law, Phillips told the reporters and assembled spectators. He also took a substantial financial hit by dropping wedding cakes altogether to avoid further legal entanglements.
      Inside the courtroom, the Court's liberal and conservative blocs used their questions in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission to construct opposing stories aimed at framing the legal issue best for their opposing sides. Liberal justices Sonia Sotomayor and Elena Kagan warned that ruling in favor of Phillips' compelled-speech doctrine argument would open the door to pleas for similar civil rights exemptions for photographers, florists, chefs, make-up artists, and hair stylists with religious scruples to participating in same-sex weddings.
      Some of those scenarios might seem even less plausible than viewing a cake as speech, but in fact a florist in Washington and a photographer in New Mexico had earlier claimed religious exemptions from their state laws, like Colorado's, that prohibit discrimination on the basis of sexual orientation. The supreme courts in those states spurned the pleas, and the U.S. Supreme Court declined to take up the florist's or the photographer's appeals.
      From their side, conservative justices conjured up sympathetic hypotheses about other kinds of individuals who they said might be forced into conscience-straining services if the Court found that Colorado's civil rights law trumps First Amendment pleas. Justice Neil Gorsuch suggested that an African American baker might be forced into baking a cake adorned with a Ku Klux Klan cross. Justice Samuel A. Alito Jr. raised the possibility that  a Jewish baker might be forced to decorate a cake to commemorate Kristallnacht, the Nazi-inspired destruction of Jewish synagogues and businesses in 1938.
      Those hypotheses were enough to help persuade at least one prominent newspaper to take Phillips' side. "Imagine a Jewish baker being required to put a swastika on a cake," the Chicago Tribune wrote in an editorial. As Lambda Legal attorney Eric Lesh noted in a tweet, however, "Nazis are not a protected class." David Cole, the ACLU lawyer representing Craig and Mullins, made the same point during oral argument. "The Ku Klux Klan as an organization is not a protected class," Cole responded.
      Cole began his allotted 15 minutes by acknowledging the sincerity of Phillips' convictions about same-sex marriage but warning that a ruling in his favor would have "unacceptable consequences." He echoed a concern that Justice Elena Kagan had raised that the same religious-based objection might be raised, for example, against providing services for a gay funeral. And he rejected as impossible any effort to draw a line between valid and invalid refusals based on the supposed "expressive content" of a cake as opposed to flowers or makeup or whatever.
      From the start of what proved to be 90 minutes of arguments, all eyes were naturally on Justice Anthony M. Kennedy, the author of the Court's four landmark gay rights opinions over the last 20 years and the Court's most consistent defender of free-speech rights. He gave conflicting signals about his eventual vote.
      Kennedy signaled sympathy for Phillips at one point by complaining of a remark that one of the seven Colorado civil rights commissioners had made criticizing the use of "religious rhetoric" to deny equal rights. At another point, the justice aptly noted that a bakery that posted a sign "no gay weddings" would be "an affront to the gay community."
      Along with Alito and Gorsuch, Chief Justice John G. Roberts Jr. clearly signaled sympathy for Phillips; Clarence Thomas, silent as usual, was also counted as a likely vote. But none of the conservatives seemed to offer a clear line that, as Justice Stephen G. Breyer put it, "will not undermine every civil rights law."
      The case, it turns out, is not about a cake. It is about equal rights, just as Craig and Mullins have maintained throughout. With many observers predicting a ruling for Phillips, the real victim in the case could be the advancing national commitment to equal rights for LGBT individuals.