Part 7. Picking Up the Crumbs from the Masterpiece Argument: A Conversation With EO Executive Director Alana Jochum

Welcome to the seventh in an 8-part series titled Frosting on the Cakes: Non-Discrimination Laws, First Amendment in the Mix at Supreme Court (Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111). We are joined by guest author Chad M. Eggspuehler to dig into the dynamics of this case, what you need to know to follow it through the process, and why it is so important. Chad is a member of the Tucker Ellis Appellate & Legal Issues Group. Before joining Tucker Ellis, he clerked for federal trial and appellate judges in New Jersey and Ohio, including the Honorable Deborah L. Cook, Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit. All views expressed here are those of the author. Chad can be reached at chad.eggspuehler@tuckerellis.com.


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Well, as expected, there were fireworks during the argument of Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111.  The transcript and audio can be found here.  Barring unexpected developments, the Court likely will issue its opinion sometime in the next few weeks or months.  In the meantime, Court watchers continue to debate which side has the upper hand.  Naturally, Frosting on the Cakes must join the conversation.

To this end, I’m thrilled to share my conversation with my friend and Equality Ohio Executive Director Alana Jochum, who attended the argument.

CME:  Hi Alana, I’m envious that you had the chance to witness such a historic argument.  Did it live up to your expectations?

AJ:  It absolutely did.  It was a packed house, truly full to the brim.  I had been to arguments before, but it was a technical patent matter, not nearly as engaging.  Here, the bench was hot from the get go—everyone except for Justice Thomas, of course, because he doesn’t typically ask questions.  But interestingly, he and Justice Breyer chat quite a bit during argument.

Interesting, that may go back to their early days on the Court, because I believe they sat next to each other for a time during the Rehnquist Court.

So, the one thing that struck me after reviewing the transcripts and audio: I have every confidence that the Court as a whole understands the gravity of the issues at stake for both sides.  I was not left with the impression that anybody is making light of either argument as nothing more than a slippery slope argument.  We saw all the hypotheticals we could imagine.  Other expressive events—bar mitzvahs, birthdays, funerals.  Other goods and services, catered food, tailored clothing, personalized makeup, etc.  Justice Kennedy flat-out asked the government if a business could post a “No gays allowed” sign in its window, and the government said “Yes.”  They didn’t hide the ball.    

Yes.  The sheer number of hypotheticals demonstrated how engaged the Court was, and how much was at stake.

One thing that stood out to me, Petitioners attorney essentially came out and asked for the rule to be limited to cake makers.  It was very surprising to me, and I think very surprising to the Court.  I think many people were wondering, wait, a cake baker is somehow different from a five-star chef in a way that entitles the baker to more First Amendment protection?  And it seemed to reveal to everyone that Petitioner’s solution was rather arbitrary.  Everyone seemed troubled by this, but particularly Justice Breyer.

I agree.  He was the one who at a certain point seemed to throw up his hands, because he said what about architecture?  And he was not happy with their response that architecture generally was not art entitled to First Amendment protection.  He cut them off to say, wait a minute, Michelangelo and the Laurentian Steps are not art?  How come?  And that’s where he began differentiating between commissioned artists and a variety of crafts where we might call someone an “artisan” because they have a certain talent and much of what they do is creating their craft in an aesthetically pleasing way.  We have never suggested that full First Amendment protection attaches to everything made by an artisan or a craftsman.

Yep, I literally believe he threw up his hands.  He was particularly challenged by how that line gets drawn.

Picture of Justice Kennedy.

Justice Kennedy asked if a business would be allowed hang a “No Gays Allowed” sign. The government replied, “Yes.”

That’s definitely one thing I would have loved to have seen—the Court’s body language— because I knew he was bothered by that issue.  I really would have liked to have seen the other Justices’ reactions. 

It looked to me like Justice Kagan and Chief Justice Roberts were both really engaged in that line of questioning.  But there were so many questions on the line-drawing problem.  I think the entire Court shares that concern.

Indeed.  It seemed like the Justices hammered both sides with difficult questions, with less apparent conservative-liberal bloc behavior than one might have expected.  It was not an obvious 4-4-1 logjam. 

I would agree with that.  I think we saw distinct questions and concerns regarding religious liberty from Justice Alito, and I believe the amicus briefs were very powerful to Justice Sotomayor because she brought them in numerous times.  She had clearly been impacted by them.

You could certainly sense a conservative-liberal tilt to certain questions, but I honestly was surprised at how even the questions were across the board.

So turning to interesting concessions and strategic decisions, right off the bat, Petitioner’s counsel completely abandoned any First Amendment claims related to premade wedding cakes, including those bearing religious messages.

I know, I felt like there was an audible gasp!  Honestly, I don’t recall, their briefing might have been closer to this than I remember.  But it came off as a surprise in their argument to me, and it also appeared to surprise the Justices as well.

I gasped myself.  Judging from the transcripts, it looks like there were Justices across the board asking, are you sure about that? 

Yes, the Justices shared the same look as many of us in the audience.  Did they just do that?

It’s not just that they made the concession, but they incorporated it into their theory of the case, and to me, what that signaled was that they were abandoning the Free Association aspect of their claim.  They never had a stand-alone Free Association claim, as there was in Hurley or Boy Scouts of America.  But there’s always been that aspect to their claim that, people are going to know that he endorses same-sex marriage if he sells them a cake.  Not anymore, apparently.  If, as they conceded, the speech is already done the moment the cake is made, then I think that makes the Justices’ line-drawing problem even more difficult, because there’s still the expressive element of the cake, and he still has to sell it.  Doesn’t that work against their own argument?

I agree.  So much of the media attention has been, well you’re forcing me to participate in your wedding by selling you a cake, and that now goes away.  The off-the-shelf cake is now fine, they draw their line at custom cakes.

I predicted them to do that, but not to the degree that they did.  I struggle to understand their revised position.  The facts are bad for them, because there’s nothing in the record about the couple requesting a custom cake.  And that reminds me of Justice Alito’s question about the summary judgment standard, don’t Petitioners get the benefit of all reasonable inferences?  Well, the answer to that in the normal setting is Yes, but this isn’t the normal setting.  The parties stipulated to the facts, so there were no disputed facts.  There are no inferences to draw here.  And there is nothing in the record about the couple requesting a custom cake; Mr. Phillips simply told them he would not make a cake—any cake—for their wedding.

So what exactly do Petitioners mean by a “custom” cake? 

Right, does that mean, they get to pick whether it’s chocolate or vanilla, three tiers or four?  That’s the gloss that Petitioners have been putting on this case since the beginning.  That Mr. Phillips is an artist that has to sketch out his design before he makes any cake, so that virtually every cake is a “custom” work of art.  We don’t even know that the couple wanted him to do that.  For all we know, they were flipping through the album of his sample cakes, and they may have said, we want the Autumn Sunrise model

Another concession that stood out to me, Petitioners agreed that subjective intent, alone, does not trigger First Amendment protection.  My reaction: okay, that should be a turning point in the analysisYou have to have an objective component, such as likely audience impact.  But I couldn’t tell what their answer to the objective component was.  Just an arbitrary wedding-cakes-only rule.

Right.  There were just so many concessions and unexpected surprises during Petitioners opening argument, and I think the Justices struggled with that the most.  How do we come up with an objective rule?  And I don’t think the Court was satisfied with Petitioners’ answer that every First Amendment case involves difficult line-drawing decisions.

Respondents also made some interesting strategic decisions, and I’m not sure all of them were successful.  In particular, I was disappointed that they wouldn’t budge on the messages-on-cakes hypothetical.  In the Commission’s view, any cake message the bakery offers other customers, including religious messages, must be available to same-sex couples, too. 

They didn’t have to go there, because that didn’t happen in this case.  The couple never requested that a specific message appear on the outside of their cake.

It seemed unnecessary.  They sure did spend a lot of time on that, but I’m not sure they really got anywhere with it.

I wished they would at least acknowledge that the First Amendment calculus is different when a customer requests a specific message on the cake.  Because at a certain point, placing messages on baked goods might bear the imprimatur of the bakery, such that the public might link the message to the bakery.  Agency-of-message issues.

Well, I thought they might circle back to the other cake cases heard by the Commission—the ones seeking a religious message.  Certain Justices appear to worry that Colorado’s position is pro-LGBT propaganda and anti-religious, and that the public accommodations law has gone too far.  To me, I can’t get past the two totally distinct fact patterns.  On the one hand, you have a person who served the person he disagreed with and provided an accommodation [supplies for putting the anti-LGBT message on the cake].  On the other, you have a person who refused to serve the same-sex couple he disagreed with, and he never got to the point of accommodation.

Well, we have to discuss Justice Kennedy’s questioning about the comment by the Civil Rights Commissioner, and his concern for potential bias.  On that, he wasn’t alone.  Justices Gorsuch and Sotomayor both joined in that volley.  The Commission seemed to want to say, there is no there there.  And the Court seemed to be saying, it sounds like there’s something there

Yes, that was another heated exchange.  And I remember Justice Sotomayor asking the attorney to please answer Justice Kennedy’s question.  Stop fighting the hypothetical.

Some commentators have suggested that this bias issue gives the court an out.  I don’t see how the Court avoids the speech and religious liberty issues, because this case squarely presents those arguments, and there are a number of similar cases waiting in the wings.  But I do agree that the bias issue gives the Court an opportunity for a larger consensus and a narrow rule of law that does little damage to Colorado’s public accommodations law. 

If the Court rejects Petitioners’ broader First Amendment arguments and a solid majority sends it back solely on the bias issue, to me that’s a win, even if it is a technical loss.  Because if they send it back to the Commission for further factfinding, and they re-open the file, I don’t think Petitioners want to do that.  There were a number of unsavory allegations—in sworn affidavits, no less—about other discriminatory encounters at the bakery.  The lesbian couple denied cupcakes for their commitment ceremony.  The couple told that they were worse than pedophiles.  The couple claiming that the owner offered to make a wedding cake for dogs, but not them.  I suspect those allegations would be disputed, but any further proceeding likely would have to address those allegations.   

So, Justice  Sotomayor brought up those encounters.  And her questioning shows that there could be consensus on the bias issue with Justice Kennedy.

The danger of the Commissioner’s statement—and it didn’t fully strike me until I saw the Court’s questioning—was the appearance that the Commission was questioning the sincerity of Mr. Phillips’s religious views.

Yep.  Courts simply don’t do that.  They don’t go there.  Justice Kennedy was angry about that statement.  And he made the attorney disavow that statement.

This year marks the 50th anniversary of Newman v. Piggie Park.

I think Justice Kennedy was really disappointed with the United States’ position in this case.  His question, along the lines of, if we rule in your favor, and bakers boycott same-sex couples across the country, will you feel vindicated?, really showed me that he had doubts about the United States’ interest.  Like, what are you doing here?  And the United States did not even want to touch that question.  They completely dodged it.

Yes, that was encouraging.

So there were a number of comparisons between discrimination on account of race and discrimination on account of sexual orientation.  And the United States really pressed these differences, diminishing the state’s interest in protecting LGBT persons. 

Well, that reminds me of Justice Sotomayor’s questioning during rebuttal.  She wanted an explanation for how this really differs from the public accommodations issues during the civil rights era.  She said public accommodations laws were needed to help steer public perception—people didn’t change their views overnight.  This exchange was so powerful to me.

So last month, March 2018, marks the 50th anniversary of the Supreme Court’s decision in Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968), which awarded fees for a successful civil rights claim and noted its agreement with the lower courts’ rejection of the restaurant owner’s claimed religious exemption to the public accommodations law.    Though dicta, the Court referred to the argument as “frivolous.” 

I can’t help but think that the Court’s decision in this case will either vindicate Piggie Park or mark a dramatic departure. 

Thank you Alana for sharing your views from oral argument.  I’m sure we’ll have much to discuss when the Court issues its decision.

Indeed.  My pleasure.

Chad M. Eggspuehler is a member of the Tucker Ellis Appellate & Legal Issues Group. Before joining Tucker Ellis, he clerked for federal trial and appellate judges in New Jersey and Ohio, including the Honorable Deborah L. Cook, Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit. All views expressed here are those of the author. Chad can be reached at chad.eggspuehler@tuckerellis.com.