Masterpiece Cake - A big nothing with some interesting commentary

Masterpiece Cake, as it will be known forevermore, was decided yesterday. I worked a tiny tiny bit on this case when I interned for ACLU of Colorado, which is pretty cool, notwithstanding the fact that I really added no discernable value. Charlie and David are lovely, though.

Yesterday morning, I joined the chorus of sighs as I heard the headline. It was foolish for me to jump to conclusions before reading the actual opinion.

One matter that I am not seeing discussed enough in the media is the Court’s comments that it was relevant that the incident that spawned this lawsuit occurred pre-Obergefell (the SCOTUS same-sex marriage decision). The Court suggested that the baker’s assumption that there was nothing illegal about refusing to make a cake for a gay wedding was bolstered by the fact that same-sex marriage was not recognized in Colorado at the time. That means that this case likely has little precedential value for any dispute arising since June of ’15.

The majority opinion itself little precedential value anyway; that’s what is meant when you keep hearing that the ruling is “narrow.” 

This majority opinion turned entirely on the fact that that the civil rights agency in Colorado who heard the case before it went into the court system indicated animus toward religion. The Court decided that the baker hadn’t gotten a fair shake at the earliest stages of this proceeding, and that the state district and appellate courts had made it worse by failing to address this animus in detail when they reviewed the case. This essentially kicks the case all the way back to the level of administrative review, and the complainants (plus counsel, funders, etc.) will have to decide whether to pursue it again. Furthermore, the Colorado Civil Rights Division has learned to tone it down on the next anti-discrimination/religious freedom conflict.

Far more interesting than the transparent punt of the majority opinion are the concurrences and dissents, where the Justices got to say how they really feel.

Justices may write additional opinions if they disagree with the judgment (dissent), or if they agree with the judgment and any part of the opinion of the court but also want to say more. In this case, there were five opinions:

1. The opinion of the Court, written by Justice Kennedy and joined by all but the two dissenting justices.
2. Dissent, written by Justice Ginsburg and joined by Justice Sotomayor.
3. Concurrence, written by Justice Kagan and joined by Justice Breyer.
4. Concurrence, written by Justice Gorsuch and joined by Justice Alito.
5. Concurrence in part and concurrence in the judgment, written by Justice Thomas and joined by Justice Gorsuch.

As discussed above, the opinion of the court was that this case was handled badly during the administrative process, and therefore the judgment against the baker should be thrown out. The opinion does not say that Colorado’s anti-discrimination laws are invalid, nor does it say that what the baker did was a-ok.

Justice Thomas’s opinion addresses an issue that the majority opinion did not reach: the compelled speech claim based on the cakes as artistic expression. He describes the typical process the baker uses to make wedding cakes: he gets to know the couple and bases his custom designs on those consultations; he personally delivers the cake to the venue, and he even hangs around at the wedding to shake people’s hands. Thomas further writes that the presence of a cake at a wedding has particular cultural meanings and is therefore inherently expressive, and I wish I were his law clerk so I could spend my legal research time reading Krondl, A History of Dessert; and Charsley, Interpretation and Custom: The Case of the Wedding Cake.

While I can see a compelling argument that the baker’s described process is artistic expression and therefore speech, the problem is that Craig and Mullins never even got to the point of discussing whether that service is what they wanted. Instead, the baker wouldn’t agree to bake a cake that would be used in a wedding of which his religion didn’t approve, no matter what it looked like.

That was OK with the conservative justices, who gave “cake” plus “wedding” a certain inherent symbolic meaning. The dissenting justices interpreted the baker’s refusal to make a cake for their wedding before they discussed any specifics at all as precisely the sort of discrimination the Colorado Anti-Discrimination Act (CADA) is meant to prevent.

The difference in interpretation of what’s being sold ties directly to the key issue: whether the business treated Craig and Mullins differently because of their sexual orientation. The conservative justices say that the baker wouldn’t sell a cake for a gay wedding to a customer regardless of their sexual orientation. The response is that the product is a cake/baked good, and the fact that “gay wedding” means no sale is discrimination, regardless of the identity of the person placing the order.

Justice Ginsburg, joined by Justice Sotomayor, agreed. Ginsburg’s dissent emphasized that the baker rejected the order before he even knew what the couple was looking for, and it did not see the comments by one or two members of the agency as a reason to reject all the findings.

Justice Kagan’s concurrence, which Justice Breyer joined, agreed with the proposition that neutral review could lead to the conclusion reached by their dissenting colleagues, but they were concerned that the agency didn’t engage in neutral review. Key to this opinion was the comparison between the case at hand and three cases filed by a single complainant in which the complainant had requested a cake in the shape of an open bible with a picture of two men holding hands with an ‘X’ through it and certain Bible verses. In each case, the bakery said they were happy to bake a book/Bible cake with Bible verses, but they would not produce the described image nor would they use words that they found demeaning or insulting. In each of these cases, the Colorado agency found no wrongdoing on the part of the bakeries.

While the conservative justices argued that the agency’s apparently conflicting findings underscored the agency’s bias, Kagan scolds the agency for not focusing on the “obvious” distinction between the cases, specifically that the baker refused to sell an item (a wedding cake) to a homosexual couple that he would have sold to a heterosexual couple. Then, of course, we’re back to the question of what exactly is being sold. Is it a cake, a wedding cake, or a gay wedding cake?

Gorsuch’s concurrence, joined by Alito, asserts that the item at issue is a gay wedding cake, and he suggests that since the baker wouldn’t make a cake for a same-sex wedding regardless of the customer’s orientation, he wasn’t in violation of the statute (i.e., the customer wouldn’t make a cake for a same-sex wedding even if it were ordered by a heterosexual parent of the couple). This opinion is also interesting for the part in which Gorsuch asserts that a sincerely held religious belief can’t be questioned as to whether it is “right” or “wrong”; It can only be weighed against the government interest in restricting the conduct. Kagan’s complaint in her concurrence is that the Commission failed to weigh the government’s interest in preventing discrimination vs. the baker’s right to express his religion in this particular way, opting instead to criticize the baker’s beliefs.

A friend of mine commented that if the agency hadn’t made the comments disparaging to the baker’s religion (on the record, no less), than it would have been 5-4 the other way, and I think he’s probably right. At least the Court was kind enough to signpost the arguments for next time.