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Analysis: Masterpiece Cakeshop case could have 'tremendous implications'

The Supreme Court justices appeared closely divided during oral arguments in the case of a Colorado baker who refused to make a gay wedding cake.
Image: Baker Jack Phillips decorates a cake in his Masterpiece Cakeshop in Lakewood, Colorado on Sept. 21, 2017.
Baker Jack Phillips decorates a cake in his Masterpiece Cakeshop in Lakewood, Colorado on Sept. 21, 2017.Rick Wilking / Reuters

The U.S. Supreme Court heard oral arguments on Tuesday in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, and the justices appeared closely divided in the case, which pits anti-discrimination law against First Amendment rights and religious freedom.

The case concerns Charlie Craig and David Mullins, a same-sex couple who approached baker Jack Phillips in 2012 to make them a cake for their wedding. When Phillips refused, Craig and Mullins filed a complaint with Colorado Civil Rights Commission, which found that Phillips was in violation of Colorado state law that expressly prohibits discrimination on the basis of sexual orientation.

The justices heard arguments in support of the baker from Kristen Waggoner, a lawyer with the Alliance Defending Freedom, and U.S. Solicitor General Noel Francisco, who defended arguments put forward by the Department of Justice, which submitted an amicus brief in September.

On the other side were Colorado Solicitor General Frederick Yarger, charged with defending Colorado's anti-discrimination law, and David Cole of the American Civil Liberties Union (ACLU), who was representing the couple.

The case comes down to whether Phillips can claim that making a custom cake for a ceremony that contravenes his personal beliefs constitutes “compelled speech” and therefore violates his First Amendment rights.

Craig and Mullins said they never even had the chance to discuss possible cake designs, as they were immediately turned away by Phillips.

“We were carrying a binder full of concepts and ideas and thinking it might be fun, but we never even got a chance to open it,” Mullins told NBC News. “[Phillips] asked who the cake was for, and when we said it was us, he informed us he could not provide a cake for a same-sex wedding.”

Mullins said he and his partner felt “humiliated.”

Drawing the line

“We effectively made our case,” Louise Melling, deputy legal director of the ACLU, told NBC News after the oral arguments. “The justices heard our argument. Several, including Kennedy, Breyer and Sotomayor, all expressed concerns about the implications of sanctioning discrimination."

Melling also said the justices were “struggling to figure out the limiting principle” as to which products are sufficiently expressive so as to trigger protection by the First Amendment and which are not.

In one instance, Justice Elena Kagan said to Waggoner, “You have a view that a cake can be speech because it involves great skill and artistry. And I guess I'm wondering, if that's the case, you know, how do you draw a line? How do you decide, oh, of course, the chef and the baker are on one side … versus the hairstylist or the makeup artist? I mean, where would you put a tailor, a tailor who makes a wonderful suit of clothes? Where does that come in?”

Anthony Kreis, a law professor specializing in LGBTQ rights, said, “It seems to me that the four liberals and Justice Kennedy really weren’t buying into the idea this is compelled speech.”

“Even Justice Gorsuch seemed to be trying to draw some kind of principled line. Some of his questioning suggested to me there is a concern on the more conservative end of the court that a ruling in favor of the baker would eviscerate state and federal public accommodations law across the country,” Kreis said.

“The heart of Masterpiece Cakeshop case is that there is really no way to draw a line here," Kreis added.

Justice Kennedy's concerns

Justice Kennedy’s questions also touched on the religious freedom of the baker and whether the Colorado Civil Rights Commission displayed a bias against Phillips.

“[Justice Kennedy] evidenced his concern for the LGBTQ community, and he also expressed concerns in particular about whether there was any kind an animus against religion from the Commission,” Melling said.

Kennedy, who many advocates and legal experts have considered a champion of LGBTQ rights on the court, brought up a statement by one of the seven commissioners on the Colorado Civil Rights Commission. The statement expressed the idea that religion, when used to justify discrimination, is “despicable.” Kennedy suggested this statement revealed an “improperly biased” position by the Commission.

“Tolerance is essential in a free society,” Kennedy said. “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.”

Possible Outcomes

In terms of outcomes, Kreis said it is “hard to tell how things will shake out,” though Justice Anthony Kennedy is likely to be the “swing vote” on the case. “It would surprise me if it wasn’t a 5-4 decision.”

In addition to a decision in favor of either the couple or Phillips, Kennedy's line of questioning suggested another possibility. Kennedy’s focus on potential anti-religious bias at the Colorado Civil Rights Commission meant “perhaps there is room here to make this a fact-specific ruling,” Kreis said. This would mean remanding the case “back to lower court to actually look at the facts and determine if something impermissible went on ”

“If there is some kind of targeted enforcement against [Phillips] because of his religion … that is a fact-specific claim that would have to be made. It wouldn’t suggest that all Colorado’s anti-discrimination laws are unconstitutional," Kreis added.

This outcome would “avoid gutting anti-discrimination law and avoid the court drawing the line where religious exceptions apply and where anti-discrimination norms remain.”

However, Kreis said, “That doesn’t resolve the issue. Eventually it will come right back up to the court.”

“Ultimately, what will happen will get sorted out in conference when the justices discuss the cases from this week,” Kreis said. “There is a lot that will happen between now and when a decision is taken, and a lot will depend on who ultimately is assigned the opinion.”

“Tremendous Implications”

Melling said the Masterpiece Cakeshop ruling will have "tremendous implications for our anti-discrimination law."

“The question being advanced is if the constitution protects the right to discriminate and under what circumstances," she explained.

David Cole, the national legal director at the ACLU and a law professor at Georgetown, said it is "hard to overstate the implications of this case."

“A decision against Charlie and Dave would allow businesses across the country to argue that they too can refuse service based on who the customer is. As we argued in court today, the justices have an obligation to defend the principle of equal dignity under the law for all Americans — including Dave and Charlie," Cole said in a statement.

Mullins stressed that this case "is not about cakes."

“This case was about us being singled out in public and humiliated and demeaned in front of other people," he said. “We don’t want other couples to have to go through the same experience we did.”