Before I write anything else, understand this — basing case predictions on oral argument is an uncertain business. I’ve seen lawyers and clients leave a courtroom with confidence only to be crushed when they read the opinion. Still, arguments can offer clues as to a justice’s thinking, and they’re worth analyzing. I’ve read the Masterpiece Cakeshop argument transcript, and there are at least four encouraging signs.
First, Kristen Waggoner, the ADF attorney arguing for Jack Phillips strongly and clearly made the most vital point — the issue was the artistic message, not the identity of the customer. Here’s a key part of the transcript:
JUSTICE GINSBURG: What if — what if it’s — if it’s an item off the shelf? That is, they don’t commission a cake just for them but they walk into the shop, they see a lovely cake, and they say we’d like to purchase it for the celebration of our marriage tonight. The Colorado law would prohibit that. Would you claim that you are entitled to an exception?
MS. WAGGONER: Absolutely not. The compelled speech doctrine is triggered by compelled speech. And in the context of a pre-made cake, that is not compelled speech.
In other words, Masterpiece Cakeshop not only serves gay customers, it would sell a gay couple a wedding cake. What he won’t do is use his artistic talents specifically and intentionally for the purpose of celebrating a same-sex union. That’s the vital distinction. That’s what implicates the compelled speech doctrine. Good on Waggoner for making the distinction up front.
Second, the justices seemed less concerned with the facts of this case than with line-drawing (i.e. how far does the compelled speech principle extend? Could it cover a truly wide array goods and services?) It’s always interesting to me when judges remove the focus from the case in front of them to the implications of, say, ruling for my client. That’s often a sign that a lawyer is on the verge of building a coalition with otherwise-hostile judges, that perhaps those judges could be won over — provided their ruling doesn’t extend farther than they desire.
Third, several justices were concerned with the apparent anti-religious animus expressed by members of the Colorado Civil Rights Commission. Read this question from Justice Kennedy:
JUSTICE KENNEDY: — has introduced the question of the Free Exercise Clause in this case. We didn’t talk about it earlier. And perhaps you want to get on to speech, but in this case, pages 293 and 294 of — of the Petitioner appendix, the - Commissioner Hess says freedom of religion used to justify discrimination is a despicable piece of rhetoric. Did the Commission ever disavow or disapprove of that statement?
MR. YARGER: There were no further proceedings in which the Commission disavowed or disapproved of that statement.
JUSTICE KENNEDY: Do you disavow or disapprove of that statement?
MR. YARGER: I would not have counseled my client to make that statement.
Then, next, there was this:
JUSTICE GORSUCH: Mr. Yarger, you actually have a second commissioner who also said that he’s — if someone has an issue with the laws impacting his personal belief system, he has to look at compromising that belief system presumably, as well, right?
MR. YARGER: And, yes, Your Honor. That’s the same principle that this Court recognized in cases -
JUSTICE GORSUCH: But a second commissioner?
This is fascinating. Justice Kennedy labels a common leftist talking point — that freedom of religion is used to justify discrimination — a “despicable piece of rhetoric.” (Update: I slightly misread the transcript. Kennedy was certainly criticizing the commissioner, but it was the commissioner who said it was “despicable” to use freedom of religion to justify discrimination. Kennedy objected to that language.) Kennedy then went on to raise the question of whether there was “a significant aspect of hostility to a religion in this case.” Many progressives have been playing the bigotry card since the inception of this case, but Justice Kennedy raises the possibility that the true bigots may have been the government officials who punished Jack Phillips.
Finally, legal experts are focusing on the wrong Kennedy quote. His statement that “Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs” is garnering headlines, but it’s not as important as what came later. Justice Kennedy put extremist identity politics on blast. Read this:
JUSTICE KENNEDY: Well, but this whole concept of identity is a slightly — suppose he says: Look, I have nothing against — against gay people. He says but I just don’t think they should have a marriage because that’s contrary to my beliefs. It’s not -
MR. COLE: Yeah.
JUSTICE KENNEDY: It’s not their identity; it’s what they’re doing.
MR. COLE: Yeah.
JUSTICE KENNEDY: I think it’s — your identity thing is just too facile.
Yes. A thousand times yes. A person’s actions are not the same thing as a person’s identity. Phillips never, ever, discriminated on the basis of identity. He merely refused to use his talents to support actions and messages he believes to be immoral. Justice Kennedy gets the key distinction in this case. Now let’s hope this thought makes it into the opinion of the Court.