SCOTUS Hears Arguments on Important First Amendment Case


Erin Mersino

Here is an eyewitness report of today’s SCOTUS oral arguments, from Erin Mersino, Chief Appellate and Supreme Court Counsel at the Great Lakes Justice Center:

This morning, I had the honor of attending oral argument before the United States Supreme Court.  The case argued today was Masterpiece Cakeshop v. Colorado Civil Rights Commission, commonly referred to as the “gay wedding cake case.”

(Click here for excerpts from the Supreme Court friend of the court brief filed by the Great Lakes Justice Center)

The case involves a humble, Christian baker Jack Phillips in the sleepy town of Lakewood, Colorado who received a phone call one day to create a custom wedding cake for a “gay marriage” celebration.  Jack Phillips responded by inviting the couple to purchase any goods in his bakery, but declined to create a custom cake for the celebration because his Christian values forbid him from promoting gay marriage.  Five years, a plethora of fines and penalties from the State of Colorado, and several boycotts later, the State of Colorado is still forcing Jack Phillips to make such cakes, and Jack Phillips finds himself fighting in the nation’s highest court for his First Amendment freedoms of speech and religious exercise.  The couple who called Jack Phillips ended up receiving their wedding cake for free from a different baker.  The cake was a replica of the rainbow flag to celebrate the gay rights movement.  Jack Phillips sits in the third row of the Supreme Court gallery, pensively.

This morning’s case demonstrates the collision of public accommodation laws and fundamental American freedoms.  Passions run skyscraper high on both sides of the argument, but today’s oral argument begins with a polite question from Justice Ginsburg trying to clarify whether it makes a difference that the cake at issue in the case was specifically commissioned for a gay wedding and not purchased off the shelf.  A great deal of confusion follows and then Justices Kagan and Sotomayor administer a pop quiz naming foods, art, buildings, and creative enterprises and demand to know if the objects or general categories of study are expression, and therefore protected speech under the First Amendment.  At one point, Justice Thomas covers his face with his full palm at the incomplete responses and failures to get to the relevant.

Unfortunately, the oral argument does not become coherent until the Solicitor General speaks.  The Solicitor General frames the issue in the case in its reality: whether the state may compel business owners to express certain viewpoints—here, a viewpoint fundamentally against one’s religious convictions.

Justice Kennedy passionately demonstrates his support of gay rights and questions whether ruling in Jack Phillips’ favor would allow shop owners to post signs in their windows, such as “no gays allowed” or “no cakes for gay weddings.”  Justice Breyer declares that ruling in Jack Phillips’ favor would create chaos to the principal of non-discrimination.  The Solicitor General ends his argument by reminding the Court that prohibiting a State from forcing its citizens to adopt messages with which they fundamentally disagree is the very core of what the First Amendment protects.  It is at this point that hope for Jack Phillips finally begins to swell.

Justice Roberts asks the attorney representing Colorado Civil Rights Commission about whether Catholic Legal Services should be compelled to represent same-sex couples against their religious beliefs or if they should be forced to close its doors.  The attorney skirts the question.  Justice Kennedy then rattles off sections from the record that show the commission’s bias toward Jack Phillips’ sincerely held religious beliefs, and, in the most important moment of the argument, Justice Kennedy comments that Colorado has not been tolerant to Jack Phillips.  And there it is, the crux of the case, tolerance.  Should a State be tolerant of its citizens’ religious beliefs or may it disallow certain beliefs with which it disagrees and punish those beliefs?

The next attorney from the ACLU brazenly begins his argument with “We don’t doubt the sincerity of Jack Phillips’ religious convictions.”  He, apparently, just believes and advocates that those beliefs should be violated and condemned.  The attorney even argues that the state should force a baker to write on a cake “God bless” the same-sex marriage participants by name, regardless of whether such a statement violates the baker’s personal convictions. The statement shows that the State is targeting and compelling speech.  Justice Kennedy speaks to clarify the position set forth in his opinion in Obergefell v. Hodges, where the justice not only voted to legalize same-sex marriage, but wrote the 5-4 majority opinion.  Today, however, Justice Kennedy questions if a Christian person, who serves all sexual orientations and holds no animus whatsoever against gay people, but cannot create a cake or participate in a same-sex wedding due to his sincerely held religious beliefs—may that person escape persecution from the State?  After observing the oral argument, I believe there are 4 votes yes (Justices Alito, Gorsuch, Thomas and Roberts), and 4 votes no (Justices Sotomayor, Kagan, Ginsburg, and Breyer).  And I am praying the Justice Kennedy casts the last “yes” vote in the case to tilt the scales in favor of something that has thus far been missing in the case—in favor of tolerance, even for Christians.

About the Author

Erin Mersino

More On

This Issue