Two years ago, when the Supreme Court declared a constitutional right of same-sex couples to marry, Justice Kennedy’s opinion for the court stressed that recognition of such of right would affect no one but the same-sex couples who marry. “Indeed,” Kennedy and his four colleagues stressed in Obergefell v. Hodges, “with respect to this asserted basis for excluding same-sex couples from the right to marry, it is appropriate to observe these cases involve only the rights of two consenting adults whose marriages would pose no risk of harm to themselves or third parties.”
And, he added, “it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”
Two years later, proponents of same-sex marriage want to have their cake and eat it, too. Their right to same-sex marriage was premised upon the assertion that it would not affect anyone else; but now they now assert that the right entitles them to force other people to affirmatively aid or celebrate their weddings. Even when this contradicts the people’s religious beliefs or freedom not to speak—precisely what Justice Kennedy and his colleagues assured would not happen.
That was the basic dispute before the court this week, in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Charlie Craig and David Mullins came to the Masterpiece Cakeshop, in Denver, and asked owner Jack Phillips to design and bake a cake celebrating their wedding. “Phillips politely declined to design and create a cake celebrating Respondents Craig’s and Mullins’ same-sex wedding,” Phillips’s initial brief explained, “but [he] offered to make any other cake for them.” Mr. Craig and Mr. Mullins turned him down, and bought a cake elsewhere.
And then they petitioned the state of Colorado to punish Mr. Phillips.
Specifically, they filed a complaint with state regulators, arguing that Mr. Phillips violated the state’s anti-discrimination law, which prohibits businesses from discriminating on the basis of sexual orientation. The state regulators, ultimately the state’s Civil Rights Commission, found Phillips guilty of violating the state law and ordered him to create wedding cakes for celebrating same-sex weddings so long as he was creating wedding cakes for traditional weddings.
Again, these weren’t simply off-the-shelf sheet cakes; they were cakes designed especially for specific weddings. And Mr. Phillips doesn’t go about his work thoughtlessly, swapping cakes for dollars without a second thought. Rather, he put, well, his heart and soul into the job. As his initial brief explained:
Given Justice Kennedy’s aforementioned reassurances in the Obergefell opinion that he wrote for himself and Justices Ginsburg, Breyer, Sotomayor, and Kagan, this might seem like precisely thing that third parties would be free to do—third parties who, we were assured, “may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.”
At Tuesday’s oral argument, however, the matter seemed far less clearly settled. Instead of stressing the baker’s freedom to act in accordance with his religious belief, Justices Ginsburg, Sotomayor, and even Kennedy pushed the baker’s lawyer to justify the baker’s refusal to bake the cake demanded by the couple.
From the outset of the oral argument, the baker’s lawyer stressed the limits of his argument:
Can the baker refuse to sell same-sex couples generic off-the-shelf cakes?
No, the baker is only refusing to custom-made message cakes.
What if the couple wants to use a cake with a message already written on it?
If the baker isn’t delivering the cake or otherwise involved with the wedding, then the baker wouldn’t have a First Amendment claim.
The core argument was straightforward: The First Amendment prohibits Colorado from forcing the baker to write a message on the cake, or from forcing anyone in general to involuntarily produce “artistic expression[s]” with or without words. “The test that this Court has used in the past to determine whether speech is engaged in,” the baker’s lawyer explained, “is to ask if it is communicating something[;] and if whatever is being communicated, the medium used is similar to other mediums that this Court has protected.”
On that point, Justice Sotomayor interrupted Chief Justice Roberts and told the lawyer: “So that begs the question, when have we ever given protection to a food? The primary purpose of a food of any kind is to be eaten.”
Setting aside the fact that no question was being begged—of course she meant “raised,” not begged—Sotomayor’s blunt characterization of the case was startling. In this case, the “cake” isn’t being protected; what the baker is trying to protect is his right to choose whether to express a message through the medium of an artistic cake. Or, looking to recent history, in the 1960s the “primary purpose” of a draft card was to facilitate military readiness; was burning draft cards utterly free of First Amendment protection? Or, to pick a more recent example, the “primary purpose” of a beard is to cover up the face and neck; does the First Amendment not protect Muslim innmates’ First Amendment right to grow beards? (In Holt v. Hobbs, Sotomayor joined her colleagues in unanimously recognizing that religious liberty is at issue.)
When Solicitor General Noel Francisco took to the podium, to represent the United States in favor of the baker’s position, Justice Kennedy—who has authored all of the court’s key opinions on same-sex relationships—suggested that the rights asserted by the baker could threaten serious harms to same-sex weddings:
In presenting the issue that way, Justice Kennedy seemed to reverse completely his Obergefell approach: where he once asserted that same-sex marriages would not affect anyone but the marrying couple, he now suggests that same-sex marriages ultimately require any number of third parties to take affirmative steps to facilitate and celebrate the wedding, even when those third parties want to be left alone. In Obergefell, Kennedy’s right to same-sex marriage was a harmless addition to the ever-growing body of constitutional rights; but in Masterpiece Cakeshop, the First Amendment’s freedom not to speak and right to freely exercise religion through inaction is seen as a threat to others’ rights. Even when the couple who didn’t compel Mr. Phillips to bake them a cake simply bought a cake elsewhere.
Of course, as lawyers always warn, one should hesitate before reading too much into the justices’ questions at oral argument; often they are simply thinking out loud. And Justice Kennedy posed some pointed questions to Colorado’s lawyer—most notably, pressing her to explain or disavow one Colorado Civil Rights Commissioner’s astonishing attack on religious liberty, which had been reprinted in the petitioners’ appendix:
“I would not have counseled my client to make that statement,” the Colorado lawyer told Justice Kennedy, disavowing the comment. Kennedy seemed dissatisfied: “Well, suppose we—suppose we thought there was a significant aspect of hostility to a religion in this case. Could your judgment stand?” Later he added, “Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”
It would be ironic if same-sex marriage advocates lost Masterpiece Cakeshop due to bigotry of Colorado regulators. But not as ironic as the opposite outcome, turning Obergefell’s live-and-let-live rhetoric into the justification for forcing bakers, photographers, and other artists to choose between their religious beliefs and their livelihoods—to bake now or forever hold their peace.
Adam J. White is a research fellow at the Hoover Institution, and executive director of the Center for the Study of the Administrative State at George Mason University’s Antonin Scalia Law School.
