Transcript of Oral Argument Masterpiece Cake Shop vs. Colorado Civil Rights Division

[NotreDame]

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-111_f314.pdf

It’s my impression, but only an impression, there are at least 5 in the Court who desire the baker to prevail.

Issues:

1. Is custom cake making for a wedding expressive conduct?
2. What if the cake included symbols? Words?
3. Has the Colorado Civil Rights Division (CCRD) applied the statute with an animus towards religion?
4. Has CCRD, in its application of the law, discriminated between religious/non-religious beliefs? (Marjorie Silva case in contrast to Phillips case).
5. Has the CCRD, in its application of the law, discriminated on the basis of viewpoint? Pro-gay message wins but anti-gay message loses. (Marjorie Silva case and Phillips case compared/contrasted).

Court may adopt the religious discrimination argument, in ruling for baker, as articulated in the amici brief at link below.

http://www.scotusblog.com/wp-content/uploads/2017/09/16-111_tsac_christian_legal_socy.pdf

 

[FireDragon76]

Kennedy seemed to take a similar stance to Obergefell, he is concerned both about the rights of religious people to express themselves, but also about the human dignity of the LGBT community.

 

[NotreDame]

Kennedy seemed to take a similar stance to Obergefell, he is concerned both about the rights of religious people to express themselves, but also about the human dignity of the LGBT community.

His remark during oral argument that
the religious belief of baker could be accommodated here since the gay couple could have, and did, receive a cake elsewhere, I think illuminated a possible resolution of the case for Kennedy.

 

[FireDragon76]

The questions that are raised by the justices are not always good indications of how they will judge the case.

 

[NotreDame]

The questions that are raised by the justices are not always good indications of how they will judge the case.

Indeed, but Kennedy wasn’t asking a question but making a statement accommodation to the religious belief was possible under these facts.

 

[FireDragon76]

Kennedy seemed sympathetic to the fact there is a level of indignity potentially involved, so I wouldn't get my hopes up too much.

 

[bhsmte]

Predicting the ruling on oral arguments, is not always the best predictor.

 

[NotreDame]

Kennedy seemed sympathetic to the fact there is a level of indignity potentially involved, so I wouldn't get my hopes up too much.

Who said anything about “hopes”? I think you’re addressing points not made.

 

[NotreDame]

Predicting the ruling on oral arguments, is not always the best predictor.

Nobody “predicted” a ruling.

 

[super animator]

Do you see the consequences if the court rules in the bakers favor?

 

[bhsmte]

Do you see the consequences if the court rules in the bakers favor?

I certainly do. There is a chance though, the court could give a very narrow ruling if they found in the baker's favor, that wouldn't open the door, to wholesale refusal of serving customers, based on the person's personal religious beliefs.

 

[NotreDame]

Do you see the consequences if the court rules in the bakers favor?

Such as?

 

[NotreDame]

I certainly do. There is a chance though, the court could give a very narrow ruling if they found in the baker's favor, that wouldn't open the door, to wholesale refusal of serving customers, based on the person's personal religious beliefs.

This is true and the amici brief at the link advocates for an approach that’s “narrow” enough.

 

[super animator]

Such as?

Such as blowing the lid on customer protections and allowing discrimination on blacks on the bias of religious belief.

 

[TLK Valentine]

Nobody “predicted” a ruling.

Just an impression, then.

 

[NotreDame]

Such as blowing the lid on customer protections and allowing discrimination on blacks on the bias of religious belief.

Not really...the Court could hold the general and neutral public accommodation statute is lawful but when applied in a discriminatory manner, with an animus towards religion (Kennedy clearly was displeased with a commissioner stating the use of religious freedom to discriminate as “despicable piece of rhetoric) then the people in which the law was discriminatory applied should prevail. This places the burden on states’ civil rights commissions to apply the law equally, as opposed to picking winners and loser on the basis they have a pro-gay/anti-gay message. (Marjorie Silva contrasted with Phillips case).

And Ms. Waggoner said race could be a compelling exception to her argument and historically distinguished from sexual orientation, specifically same sex, which ameliorates your allegation of an inexorable deluge of racial discrimination.

 

[NotreDame]

Just an impression, then.

Ya think? What gave you this notion?

 

[TLK Valentine]

Not really...the Court could hold the general and neutral public accommodation statute is lawful but when applied in a discriminatory manner, with an animus towards religion (Kennedy clearly was displeased with a commissioner stating the use of religious freedom to discriminate as “despicable piece of rhetoric) then the people in which the law was discriminatory applied should prevail. This places the burden on states’ civil rights commissions to apply the law equally, as opposed to picking winners and loser on the basis they have a pro-gay/anti-gay message. (Marjorie Silva contrasted with Phillips case).

So how does one show that the statute is being applied with or without an animus towards religion?

Suppose there are two bakeries, neither of which serve gay weddings... one cites "religious beliefs," and the other just plain doesn't like gays.

Assume for the moment that they both get fined equally -- no problem, then?

And Ms. Waggoner said race could be a compelling exception to her argument and historically distinguished from sexual orientation, specifically same sex, which ameliorates your allegation of an inexorable deluge of racial discrimination.

Depends on the difference between "could be" and is.

Besides, the bakery isn't claiming to discriminate against gays per se, merely against them getting married. Similarly, race might not necessarily be the issue, but, for example, interracial marriages...

 

[TLK Valentine]

Ya think? What gave you this notion?

just an impression.

 

[Maren]

Not really...the Court could hold the general and neutral public accommodation statute is lawful but when applied in a discriminatory manner, with an animus towards religion (Kennedy clearly was displeased with a commissioner stating the use of religious freedom to discriminate as “despicable piece of rhetoric) then the people in which the law was discriminatory applied should prevail. This places the burden on states’ civil rights commissions to apply the law equally, as opposed to picking winners and loser on the basis they have a pro-gay/anti-gay message. (Marjorie Silva contrasted with Phillips case).

And Ms. Waggoner said race could be a compelling exception to her argument and historically distinguished from sexual orientation, specifically same sex, which ameliorates your allegation of an inexorable deluge of racial discrimination.

One key fact you are overlooking, in the Silva case she actually offered to provide a cake; and not only that, went a step further to say she would provide the icing and tools needed for the customer to add the custom message that he wanted on the cake. She refused purely based on an actual message, not that baking the cake itself was a statement of "approval" of the use of the cake.

By contrast, Phillips refused to sell them any cake for their wedding, which would include a completely generic case. It is also useful if you go back to the original judge's decision, where he made his decision largely on the basis that the Phillips denied to sell them any cake before even discussing how the cake would be decorated. It is largely on this basis that the judge ruled for the couple; he even stated in his ruling that if Phillips had talked about how they wanted the cake to look, that he may then have been able to refuse on the basis of First Amendment rights -- just as Silva did.

I understand being displeased with a commissioner but, in the end, that has little to do with the law, or how it is written. It may mean, however, that the commissioner should lose their position.