#EmpiricalSCOTUS - The State of the States Before the Supreme Court
Rather than originating from a federal court of appeal like the majority of cases before the Supreme Court, the most discussed case of this term came from a state court. Masterpiece Cakeshop was petitioned to the Supreme Court after a decision from the Colorado Court of Appeals and Colorado’s Solicitor General, Frederick Yarger, handled the argument for the respondent Colorado Civil Rights…
There are almost certainly five votes for the anti-gay cake baker Jack Phillips.
Ian Millhiser at ThinkProgress:
There’s no way to sugarcoat the oral arguments in Masterpiece Cakeshop v. Civil Rights Commission, a landmark Supreme Court case asking whether a religious baker who objects to same-sex marriages is allowed to defy Colorado’s anti-discrimination law. Justice Anthony Kennedy, the key swing vote and the only conservative on the Court who has shown much sympathy for LGBTQ rights, appears almost certain to side with Jack Phillips, the baker in this case.
Though there is a chance that Kennedy could side with Phillips on narrow grounds, Masterpiece Cakeshop could potentially give religious conservatives sweeping power to engage in discrimination.
Phillips appears likely to win despite fairly inept lawyering by his attorney, the Alliance Defending Freedom’s Kristen Waggoner. For most of her time at the podium, Waggoner seemed to tie herself in knots — unable to explain which individuals should be exempt from civil rights laws and which ones should not. At one point, she even whiffed at a softball pitched to her by staunchly conservative Justice Samuel Alito.
In fact, Waggoner dug herself in so deep a hole that she may have inadvertently saved the LGBTQ community from a sweeping loss that would cut much deeper into their rights. Though Kennedy appeared angered by the state officials who enforce Colorado’s anti-discrimination law, he also at one point seemed to cast about for a way to decide this case that could have minimal implications for future cases.
A crucial issue in Masterpiece Cakeshop is how to limit its holding. Should all people with religious objections to civil rights laws be allowed to ignore them? Or perhaps simply people who engage in creative work? Waggoner’s answer to this question is that Mr. Phillips makes creative works of art — albeit in cake form — and that his wedding cakes necessarily express the message that the event where that cake is served celebrates a valid marriage.
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Things quickly turned south, however, not long after Colorado Solicitor General Frederick Yarger stepped up to the podium to defend Colorado’s anti-discrimination law. Up until this point, everyone in the courtroom treated the case as a free speech case. Waggoner and Francisco’s arguments rested largely on claims that Phillips was being forced to express a view that he does not hold. The question of whether Phillips’ right to practice his faith was somehow implicated largely went unmentioned.
But this question sure mattered to Kennedy. Pointing to a state commissioner who claimed that the idea that religion could be wielded to justify discrimination is “despicable,” Kennedy all but demanded that Yarger disavow that statement. This one commissioner’s statement, Kennedy suggested, displayed such hostility to religion that it could justify invalidating the entire ruling against Mr. Phillips.
Chief Justice Roberts and Neil Gorsuch, who occupies the seat that Senate Republicans held open for a year until Donald Trump could fill it, quickly piled on. Gorsuch, for his part, claimed that a second commissioner showed improper bias when they said that a person with religious beliefs that conflict with a civil rights laws may have to compromise those beliefs.
And then things got even worse for Colorado and for supporters of anti-discrimination laws. “Tolerance is essential in a free society,” Kennedy lectured Yarger. The state, Kennedy continued, has not been particularly tolerant towards Mr. Phillips. “There are other shops,” Kennedy concluded, suggesting that same-sex couples should be forced to go door to door to other bakeries until they find one willing to serve them.
Kennedy appears to be floating two entirely separate rationales for a decision in favor of Mr. Phillips here.
One could potentially be quite narrow, invalidating this particular ruling due to poorly worded statements by one or two state commissioners, but leaving intact Colorado and other states’ ability to enforce their civil rights laws so long as they watch their tongues.
The other rationale, meanwhile, could be extraordinarily sweeping — the equivalent of telling a black person in the Jim Crow South that it was fine if the Woolworth’s lunch counter won’t serve them, so long as there “are other shops” up the road that will sell African Americans lunch.
Kennedy may also need to navigate the maze Waggoner got lost in during her time at the podium — are florists like bakers? how about hairstylists? But make no mistake, Kennedy appeared almost certain to side with Mr. Phillips. The biggest question is how he will do so.
I would agree that based on the oral arguments on Masterpiece Cakeshop, a 5-4 win for the license to discriminate idea to spread and a loss for LGBTQ rights is likely. The main question is how narrow or big the scope of Masterpiece Cakeshop v. Colorado Civil Rights Commission will be.
Briefs and articles cited in SCOTUS opinions this term. Look out for the #appellatetweeps
Attorneys before the Supreme Court have multiple goals. Whether the ultimate goal is winning a case, affecting public policy, or testing the constitutionality of a piece of legislation, good counsel get the justices’ attention. How they get the justices’ attention varies. Some engender attention through their regular experience before the Court while others through the firms or groups they…
