Masterpiece Cakeshop Round 2

Posted on ; Last updated on April 10, 2023
Formal group photograph of the Supreme Court

Four years after Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, there is another case (again originated in Colorado) pending before the Supreme Court of the United States, which seems to pit First Amendment rights against rights of people with protected traits, 303 Creative LLC v. Elenis.

Like Masterpiece Cakeshop, the petitioner, a web designer, argues that her First Amendment right is violated when she is required by law to design wedding websites for same-sex union against her religious beliefs or else stop designing wedding websites altogether. The State of Colorado argues that she violates the rights of people with homosexual orientation if she refuses to provide them her service otherwise available to all people.

Unlike Masterpiece Cakeshop, which the Court ruled 7-2 in favour of the First Amendment rights of the petitioner, Jack Phillips, on a technicality – because in the opinion of the Court there is “clear and impermissible hostility” to religion on the part of the State of Colorado, there is no, at least not clear, evidence of hostility here. So the Court cannot make a ruling with a very narrow scope as it did in Masterpiece, but must face the dilemma of judging between two legitimate and conflicting rights.

Just for fun and intellectual exercise, I’ll do a commentary on the oral argument that happened two weeks ago on December 5, and predict each Justice’s decision, based on their colloquies during the oral argument, and their written opinions in the previous case. The composition of the Court has changed from four years ago. Two Justices, Kennedy and Breyer, retired, and one, Ginsburg, passed away. They are succeeded by Justices Kavanaugh, Kentanji and Barrett respectively. It will be a challenge to pinpoint where exactly they stand on the issue.

Prediction: 6-3 decision for the petitioner

Justice Sotomayor: for the respondent

Sotomayor is one of the two justices who dissented in Masterpiece. Setting that aside, it is obvious from the oral argument alone whose side she is on. In a civil discourse, if one disagrees with another’s argument, the reasonable thing would be to explain why it is problematic, e.g., by pointing out any factual or logical inconsistencies. Sotomayor doesn’t do that. She aggressively grills the attorney for the petitioner. If her question is answered, she doesn’t acknowledge it, but brings up another issue, and later circles back to the previous question again and again. I get the impression that nothing can be said that would change her mind.

Justice Gorsuch: for the petitioner

Gorsuch seems to have a sincere desire to understand differing and opposing view points: his questions are typically non-rhetorical, polite and to the point, he acknowledges good answers, seeks clarifications, makes reasoned objections if he finds them unsatisfactory. In Masterpiece, he wrote a concurring opinion for the petitioner, defending freedom of conscience and religious exercise. Interestingly, his opinion in Bostock v. Clayton County suggests that he can be persuaded to conflate different protected traits related to sex, and come to a conclusion that is utterly surprising. Nevertheless, Gorsuch makes it clear that he sees this case as essentially the same as Masterpiece -“last time around we had cakes”.

Justice Jackson: for the respondent

Jackson seems to agree implicitly with the respondent’s argument conflating status and conduct. She compares same-sex union with interracial marriage, saying, “opposition to interracial marriages … in many instances was on religious grounds”, to the “absolute” delight of the respondent. Apart from that, she poses an ingenious hypothetical question: In cases where a public service constitutes speech, what if the content of the speech excludes a whole class of people, and consequently excludes said class from being served? Ms. Waggoner, who won Masterpiece, isn’t prepared for Jackson’s question, as her answers are repeatedly short, evasive and unclear, despite Jackson’s multiple attempts at clarification.

Justice Kagan: for the respondent

In Masterpiece, Kagan ruled in favour of the petitioner, because of hostility to religion on the part of the respondent in that case. But she will rule for the respondent this time around. She does not see a wedding cake or wedding website as constituting speech, although she concedes that, if there are words written that can be attributed to the petitioner, it might be different. As things stand, she sees a wedding website as no different from an event announcement service, which doesn’t represent the announcer’s views.

Justice Roberts: for the petitioner

In his dissent in Obergefell v. Hodges, Roberts defends the traditional view held by the petitioner, and demolishes the respondent’s argument equating same-sex union with interracial marriage. He also ruled in favour of the petitioner in Masterpiece. During the oral argument, he points out directly that the respondent misinterpreted a key precedent of the Court, which they “rely on most heavily” and which was written by himself, pulling the rug from under their feet.

Justice Thomas: for the petitioner

In his dissent in Obergefell, Thomas argues that “liberty” in the context of the Constitution means freedom from government restraint. In Masterpiece, he defends the right to free speech. As a black American, his defence of the right to racist speech is particularly poignant.

Justice Alito: for the petitioner

Alito wrote a dissent in Obergefell, defending the traditional view held by the petitioner, and joined a concurrence in Masterpiece, defending the free exercise of religion.

Justice Barrett: for the petitioner

Barrett’s questions addressed to the petitioner helps to clarify their position. Her questions to the respondent, on the other hand, expose a problem with their argument, namely, by conflating status and conduct, the respondent is asking the Court to grant sexual orientation a level of protection that is not extended to any other protected traits.

Justice Kavanaugh: for the petitioner

Kavanaugh seems to find arguments in the briefs supporting the petitioner’s position persuasive, and the respondent’s answers unpersuasive. He is also concerned about the practical ramifications of the respondent’s position.

In his book Making Your Case: The Art of Persuading Judges, the late Justice Scalia writes that advocates before the (Supreme) Court should treat the Justices/Judges as senior partners in a law firm. The relationship should be collaborative, not adversarial, nor manipulative. In other words, the lawyers are there to help the judges solve a difficult problem, and hopefully the solution is in their favour, because they have thought it through better than the other side. It seems to me that the lawyers and judges in this case have not understood the opposing position, some of them have even cast the opposing side in the most unfavourable light possible. If this is true, the prospect of a fair ruling is bleak.

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