Masterpiece Cakeshop

Regarding Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court has already granted extensions for filing merits briefs. The first of these, from Masterpiece (the petitioner) via Alliance Defending Freedom is due by this Thursday, August 31. That means amicus briefs in support of Masterpiece are due on September 7. To the best of my knowledge Labor day does not extend the due date.

I understand that Cato will be filing a brief in support of Masterpiece. We are going to see other briefs from libertarian groups and individuals. These are important because they are likely to make the most legitimate secular argument (to the extent that one can be made) in favor of permitting discrimination. 

Most of the briefs, however, will be submitted by religious groups arguing in favor of conscientious objector status. They will claim that requiring a Christian to serve a same-sex wedding makes them complicit in an event that goes against their religious beliefs. They will also argue that requiring Phillips to bake the cake is compelled speech which is a First Amendment violation.

It will be interesting to see if the United States files a brief in support of the petitioner. Jeff Wall is the Acting Solicitor General. Technically he is Sessions’ peer but Agent Orange will make the decision. I fully expect a brief.

The Court has given Colorado (the respondent) an extension until October 23 to file a reply brief. Precedent is on our side. In Reynolds v. United States (1879) the court held that the state could not regulate belief but could regulate conduct. The more daunting precedent is the one established by Employment Division v. Smith (1990). In an opinion for the majority written by Justice Scalia the Court ruled that there are no religious objections to otherwise valid laws. Moreover, in Roberts v. Jaycess (1984) the Court ruled in a case challenging Minnesota’s nondiscrimination law that the state had a compelling interest in public accommodations law as a means of preventing discrimination.

Compelled speech should not be a legitimate issue. Phillips rejected the order prior to any discussion of what the cake would look like.

Amicus briefs in support of the respondent (Colorado) are due by November 1. These are likely to come from the same groups that supported marriage equality. Aside from precedent they are likely to argue that laws in favor of equality in public accommodations have already been given favor over religious objections in federal law.

This case has broad repercussions. How does one give the baker the right to deny service to a gay couple in defiance of applicable law without giving a Klansman the right to deny service to a Jew or an African-American based on his religious beliefs? This has the potential to invalidate every non-discrimination law in the land that protects LGBT people. A license to discriminate is available to anyone who disapproves of gay or trans people simply be assigning the disapproval to religious belief.

But there is more. In order to rule for the petitioner the Court has to assert that Free Exercise applies to every day conduct including workplace activity. What about the employer who wants to prevent proselytizing and other toxic extensions of evangelism at the office? 

On the other hand, this also has the potential to validate those same nondiscrimination laws. The Court has an opportunity to rule (again) in favor of preventing discrimination.

The petitioner gets to file a reply brief and here the schedule is hypothetical. That is due some time between December 1 and at least ten days prior to oral argument (which is not yet scheduled). My guess is oral argument in early January, 2018 with a decision in late June.

ADF has also petitioned the Court to hear the similar case of Barronelle Stutzman, the Washington florist. The Court could consolidate the two cases which creates a whole new timeline. In the alternative they could hold the case in abeyance until Masterpiece is resolved.

My guess is that this case would never have been heard without Gorsuch. So thank you very much, the folks who stayed home last November in pyrrhic protest, the Bernie or Bust crowd and the the people who were just too damned lazy to pull a lever. The probably outcome in 2018 is that the GOP retains the Senate and may even pick up a seat. One more Trump nominee on the Court and we are (I am trying to clean it up a bit) in deep trouble. Gorsuch is going to be around for the next 25 years or so. We really blew it.

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By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.