Not Just Any Cake

Earlier this month, the U.S. Supreme Court heard oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the first major LGBT-rights case since the Court affirmed nationwide marriage equality in Obergefell v. Hodges in 2015. But while the case originated with a same-sex couple’s complaint against a baker, the matter has wide societal implications for all manner of businesses and all types of customers, agreed Fordham Law Professors Elizabeth Cooper and Abner S. Greene in separate interviews last week. 

Masterpiece Cakeshop is not about bakeries, Professor Cooper said. At its heart, the case is about something much larger: to what extent public accommodations are permitted to discriminate. Currently, the law prohibits businesses from discriminating against potential patrons on the basis of race, gender, sexual orientation, and other protected identities. That could change next summer when the Court is expected to deliver its ruling on the case.

“The fear that many advocates have about the case is, if the court sides with the bakery, it could open the floodgates to massive discrimination not only against gay people, but also against people of color, religious minorities, and anyone who doesn’t fit within the professed values or norms of the provider of services,” Cooper said.

Justice Stephen G. Breyer highlighted those fears during oral arguments, declaring that a ruling in Phillips’ favor would “undermine every civil rights law since year 2.”

“We call places like bakeries, as well as doctor’s offices, movie theaters, car rental offices, and other entities that welcome the general public, public accommodations,” Cooper added. “It would undermine the dignity of numerous individuals and even civil society if we rolled back the non-discrimination protections that our country has long valued.”

The question Breyer and other justices must weigh is whether Colorado should grant Phillips an exemption from its antidiscrimination public accommodation law on account of his sincerely held religious beliefs on marriage. Phillips’ lawyers argue that the Colorado Civil Rights Commission’s attempts to compel him to create expression violates the free speech and free exercise clauses of the First Amendment.

Professor Greene has studied and written extensively on the intersection of faith and the law throughout his career. His 2012 book Against Obligation: The Multiple Sources of Authority in a Liberal Democracy introduced the concept of “permeable sovereignty,” in which all the sources that govern our lives—the state, as well as religion, family, tribe, and culture—start off on equal footing.

While Greene is “sympathetic to the idea that people should have a presumptive free exercise claim when laws substantially burden their religious beliefs,” he said he doesn’t believe the baker has the right to an exemption from the law in this case. The baker’s compelled speech case is also weakened, the professor observed, due to the fact that he refused to make the couple’s cake before they told him what message they wanted him to write on it.

“The state’s interest is in applying its public accommodation antidiscrimination law uniformly to all those who provide general goods and services to the public,” Greene explained. “This serves two important ends: equal access to the marketplace and equal dignity for all who seek goods and services.” If the Court rules in favor of Colorado, Phillips would find himself in the same position that many on the political left and right have found themselves over the years when faced with laws that impinge on his conscience. The baker’s three options under such a scenario, Greene explained, would be to 1) violate the law and assume the penalties, 2) adjust his business so that it is no longer covered by the particular law, or 3) rethink his religious and moral beliefs to determine if they could comply with the law.

Another scenario—the one Breyer fears—could also occur.

Justice Anthony Kennedy, who authored the majority opinions in the Court’s affirmation of same-sex marriage in U.S. v. Windsor (2013) and Obergefell v. Hodges (2015), is expected to once again be the swing vote in Masterpiece Cakeshop. He has also voted with the majority in landmark LGBT rights cases Romer v. Evans (1996) and Lawrence v. Texas (2003).

Despite Kennedy’s reputation as a gay rights champion, his comments during oral arguments for Masterpiece Cakeshop raised doubts among LGBT advocates whether he will undercut decades of progress and his own legacy. Notably, Kennedy remarked that the Colorado Civil Rights Commission had been “neither tolerant nor respectful of Mr. Phillips’s religious beliefs.”

Kennedy’s statement on tolerance might suggest he is pained by the dilemma between the state’s interest in uniform application of its antidiscrimination laws and the religious convictions of persons such as Phillips. However, Greene pointed to Texas v. Johnson, a flag-burning case in which Kennedy’s personal values conflicted with what the law provided, as a possible preview for his decision in Masterpiece Cakeshop. In the former, Kennedy wrote a concurrence that flag burners could not be punished under the law, even though he found flag burning odious. It’s possible he will rule that Phillips does not have a right to an exemption, even though he believes the state should have been more tolerant of his beliefs, Greene said.

Some Court observers believe Kennedy might look for a way to transfer the case back to lower courts for further proceedings to develop the record, Cooper noted.

“It’s clear Justice Kennedy is struggling with this case,” Cooper said. “He is a man of deep religious conviction, and I’m sure he feels rightly protective of his religious values and practices—as well as of his legacy on the Court upholding the dignity of LGBT people.”

“No one is saying that the cake baker cannot possess strongly held religious beliefs and values,” Cooper added. “But others have argued, and I agree, that religion cannot be used to implement discriminatory policies. That is counter to the core of our Constitution.”


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