Oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission recently concluded.
Many commentators are already suggesting that the argument went poorly for pro-equality forces. Justice Kennedy, the moderate-conservative justice who will be the swing vote and has written many pro-equality decisions in the past, asked pointed questions of the lawyers representing the Commission.
It used to be hard to telegraph an opinion from oral argument. These days, on certain issues, the Court is lining up 4 on one side and 4 on the other, with Kennedy in the middle. Kennedy’s questioning was sharpest when the case for equality was being made. If he does end up siding with his conservative colleagues, the consequences will be dire. It will be a return to Jim Crow. Kennedy will have accomplished nothing less than the complete erosion of his distinguished legacy.
I haven’t had the time to read through the transcript of the argument, but live reports from inside the Supreme Court during argument merit some analysis.
The argument played out much like we expected, with discussions, as noted here, about the free exercise of religion and whether a cake is expression protected by the First Amendment. There were, from the left, comparisons to business owners who refused service to black people or interracial couples. There were, from the right, protestations that free expression can never be silenced. Two topics struck me as important: the suggestion that “freedom” trumps “equality” and the idea that the Commission’s pro-equality decision was based on animus toward religious people.
The background theory of this entire case, echoed by Justice Gorsuch, who shouldn’t even be sitting on the Court, and Justice Alito, is that individual business owners should be free to refuse service to people based on their religious beliefs. More specifically, Masterpiece and the Trump Administration argued that a religious person has the freedom to opt out of nondiscrimination or equality laws when compliance would conflict with their presumably deeply held religious beliefs. That has to be the argument.
Mr. Phillips, the owner of Masterpiece Cakeshop in greater Denver, knew only one thing about his customers before he refused to sell them a wedding cake: that they are gay. It is the exact same argument religious people argued in Hobby Lobby, which allowed religious people who own businesses to opt out of health care law requirements that their health plans provide contraception. It is the exact same argument that Kim Davis offered when she refused to do her job and grant marriage licenses to lawfully married same-sex couples. Freedom trumps equality, they argued.
There are myriad problems with this argument. First, conservatives aren’t asking for freedom. No one is stopping them from speaking or exercising their religion. They are asking to discriminate. Freedom is a pretext. Second, society has made a judgment, embodied in the Constitution, that we can exercise our individual rights up to the point that they impinge on the rights of others. Third, by denying LGBTQ Americans, or anyone for that matter, protection afforded by equality and nondiscrimination laws, our freedom to live our lives is damaged. So why are the freedoms of religious Americans more important than ours?
Justice Kennedy’s suggestion that the Commission’s decision enforcing Colorado’s anti-discrimination law reflected animus toward religious people is particularly distressing. This is offensive. As a matter of law, the animus doctrine has been a tool of equality for marginalized populations. The Supreme Court noted in Romer v. Evans, in a Kennedy opinion, that a discriminatory law passed out of pure animus against gay people cannot even pass rational basis review.
To suggest that equality and nondiscrimination laws reflect animus toward religious people who want to use their religious views as tools of oppression is a bastardization of the rule of law. But, to no one’s surprise, conservatives have been making this argument since forever. To them, to people who have been in charge, to those who have acted and behaved however they wanted, equality seems like oppression. And advocates for equality seem like bullies.
The wholesale rejection of equality laws’ application to religious people, the very likely result of a decision siding with the baker in this case, is exactly where conservatives, the Republican Party, and the Federalist Society have been taking us for some time. It’s in Kennedy’s hands now, and I have to believe that he understands the implications.
More to come later….