[Commentary] Why I Am Optimistic About How the Supreme Court May Rule In ‘Cake Case’

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The following is an analysis and commentary of yesterday’s oral arguments in Masterpiece Cake v. Colorado Civil Rights Commission held before the U.S. Supreme Court written by Norfolk attorney Scott Michael Goodspeed.

On Tuesday December 5, the United States Supreme Court heard oral arguments in the infamous Masterpiece Cake Shop case, in which the owner of a Colorado Cake shop refused to make a custom cake for a same-sex wedding. The argument featured attorneys for the Shop owner, the Trump Administration (which sides with the Shop owner), the State of Colorado and the couple. In my humble and optimistic opinion, the argument did not bode well for the shop.

The Shop owner argued that the state unconstitutionally “compelled speech” by forcing him to create a custom cake for a wedding he opposed. Oddly, when asked whether a chef, a makeup artist or a hairdresser could similarly refuse their services on the same basis, the lawyer for the shop said that those professionals would have to serve the couple- but she could not explain what distinguishes their “creating” from that of the baker. Essentially, she argued that some “artistic expression” is just more “artistic” than other “artistic expression” and entitled to more protection. This is, in my legal opinion, not a very compelling position; the Bench did not seem impressed.

On the religious liberty side, the Shop and the Administration could not articulate why the government does not have to accommodate religious objections to interracial marriage in its laws, but should accommodate religious objections to same-sex marriages. In layman terms, the best they had to offer is that “race cases are just different” because the objection is based on the characteristic of the customer you don’t want to serve, not to the message you don’t want to send … It is an understatement to say that the shop side had trouble distinguishing this case from those in which the “characteristic” of the customer was the problem.

Based in the questions and answers, my prediction is that the “compelled speech” argument doesn’t really fly and if it has any traction at all, the state’s interests here will trump the free speech claim. The religious liberty issue is harder to predict. The Justices seemed interested in the law’s efforts at religious accommodation and the Court may dodge the issue by sending the case to trial on that. What is clear from the argument, is that if the shop wins, there will be a flood of cases asking where “religious liberty” begins and an individual’s right to fully participate in the economy ends. I do not think the Court will allow that to happen. We will find out in June if I am right. 

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