One Cake To Rule Them All   

 Walking out of the Masterpiece Cakeshop argument at the Supreme Court this morning, I encountered a wall of sound.  The sidewalk teemed with supporters and protestors, waving placards and flags, as media cameras swarmed.  Bakery advocates chanted “Justice for Jack,” while competing chants of “Love Conquers All” erupted on behalf of Charlie Craig and David Mullins.

I love America.  What else is free speech, if not the ability to peacefully hold competing rallies on the Supreme Court steps?

Just then, someone started singing.  I couldn’t make out the words until a critical mass of the crowd joined in: “Through the night with the light from above…from the mountains, to the prairies…”  It took me a second to identify the song as God Bless America.  At that moment, everyone was so intermixed, I couldn’t even figure out which “side” was singing it.

How apt, I thought.  Colorado, a state literally straddling the mountains and the prairies, is stuck in the middle of a great national debate, on a case ostensibly about cake.  And the very fact that I didn’t know which side was invoking “God bless America, my home sweet home,” reveals so much about the competing fundamental principles at play.  Does religious love for our neighbors mean, as bloggernacle members Cynthia and Jerilyn have meme-ified, Jesus would bake the gosh darn cake?

Or does obedience to God mean sincere religious objectors can refuse to lend their speech and their services to those ceremonies? What is God’s guidance for the land that we all love?

While I pondered, the lawyers and parties emerged from the Supreme Court, taking up dueling microphones in order to read carefully scripted statements to the press.  The rainbow sea of people parted as the two factions coalesced around their champions’ podiums.  Fascinated, I walked through the gap and then stood in the exact middle, where I could hear both sets of speeches at the same time.  The baker swore to welcome everyone, including LGBT customers, to his humble shop in Colorado – he just asked for the sole accommodation of not being forced to custom-create wedding cakes celebrating a ceremony he religiously condemns.  50 feet away, Mr. Craig proclaimed his love for Mr. Mullins, vowing that after he had felt the shame and scorn of being denied a cake, he had realized he could not stand idly by and do nothing.  To them, the case wasn’t about cakes, it was about the multitude of ways that the LGBT community, and all other minorities, are subtly and overtly discriminated against in the provision of basic goods and services each and every day.

The competing narratives are each compelling.  Most news reports out this afternoon discussed a sharply divided court, with court-watchers unsure as to how the Justices will rule.  I know my head was spinning, trying to keep track of every line of argument, every statement I agreed with, every concession I winced at, and the Justices’ varying reactions.

But what the press does not seem to be focused on is just how much latent agreement there was across the room, when you listened carefully.

Take speech:  most everyone agreed that forcing bakers to write specific disagreeable or hate-speech messages on a cake would be barred by the First Amendment.  In so doing, they effectively conceded that custom cakes involve some form of speech – they’re not mere “conduct.”  The discussion instead focused on whether custom-designed cakes (and other custom services) are best characterized as fully-protected artistic speech, or less-protected expressive conduct. [1] 

Similarly, on discrimination:  everyone was deeply concerned about adopting any position which would jettison 50 years of civil rights protections.  They agreed that discrimination on the basis of immutable identity or protected class status was abhorrent and illegal. [2] But they disagreed on whether refusing to custom-bake a wedding cake for a gay couple was impermissible discrimination against an immutable identity, versus whether it was permissible discrimination against a specific objectionable message.  As the Cakeshop lawyer articulated, that distinction matters, and adopting it provides equal protection to the lesbian graphic designer who doesn’t want to create protest signs for the Westboro Baptist Church.

My instinct is that the Court will rule for Masterpiece Cakeshop, but I don’t know on what grounds – presumably the narrowest possible rationale the Court can construct.  My current guess is that the Court will say that custom-designed wedding cakes are “expressive conduct” under the First Amendment, which receive less protection than full speech.  Under the “expressive conduct” test, Colorado has a substantial government interest in protecting the dignity of gay couples and prohibiting discrimination against all protected classes, including LGBT individuals.

The Court may then say that the problem arose here in that Colorado did not apply this non-discrimination interest in a way that was “neutral to free expression.”[3]  Instead, Colorado recognized that cake bakers in some contexts can refuse to engage in “offensive” cake-decorating speech, but in this context, the Colorado commission rejected the baker’s view as to “offensiveness” as invalid and a front for bigotry – a use of “a despicable piece of rhetoric” about “freedom of religion” in order to “justify discrimination.”  The First Amendment does not permit Colorado to decide on behalf of the baker which messages are offensive.  In short, the Court will say that Colorado can order all bakeries (and public accommodations) to serve all LGBT customers and other protected classes – but Colorado needs to be consistent in how that is applied when expressive messages come into play.

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*Photo credit, me.  With cupcakes I bought at “The Sweet Lobby” on Capitol Hill; sadly they did not have rainbow sprinkles.  Separately, I consider it a gross failure that the ACLU, et. al., weren’t handing out free rainbow-iced cupcakes to passersby and the press.  Clearly I missed my calling in life and should switch to a career in PR.

[1] Justice Sotamayor was particularly passionate about this distinction, whisking the bakery’s attorney into muddled confusion.   As a random aside, and because it’s hilarious and I can’t help myself, I’m going to pretend like I had a “vision” about and therefore can take credit for Sotamayor’s involvement.  All last night I kept waking up like a kid on Christmas Eve, worried I would oversleep and somehow miss my presents — errr, the Masterpiece Cakeshop argument.  At 3:30 a.m. I bolted awake from one such anxiety-dream.   Somehow, because I had walked into the courtroom late, I was told I would be arguing the case – but I didn’t know which side!  As I panicked, the Justices walked in, and Justice Sotamayor winked at me.  Instead of wearing a black robe she had on a subtly dark purple one.  As the robe rustled I realized, in a grand act of rebellion, she had lined the inside with rainbows.  Mama Sotamayor had arrived, and everything was going to be OK.

[2] In a weird twist, the lawyer for the bakery and the lawyer for the United States each argued that between protected classes, racial discrimination was more serious than religious or gender discrimination.  They claimed that discrimination against interracial marriage was prohibited, but discrimination against inter-religious marriage (like me and my Catholic fiancé!) was permissible.  I find this distinction utterly unworkable and expect the court to swiftly reject it.  The reason this case exists is because the baker asserts that his religious belief entitles him to an exception from a public accommodation law, but now he wants the Supreme Court to create law saying that public accommodation laws do not require respect for everyone else’s religious beliefs?

[3]  This is essentially the same argument advanced in part by the LDS Church’s amicus brief, pages 18-20.