Masterpiece Hypotheticals

Today the US Supreme Court heard oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  Transcript here. The biggest case of the year thus far, some say. In the case, a baker of custom wedding cakes in Florida refused to [sell a] / [create a custom] wedding cake for a gay couple. He argues that he cannot be prosecuted for such refusal under state anti-discrimination law because by forcing him to sell/create make such a cake (an expressive work of art), he would be forced to engage in speech. And the First Amendment does not allow a state to force speech.

The case is fun because it produces so many argumentative hypotheticals.  Here’s a few from today’s oral argument. Highlights include talk of Mexican mole and perhaps the first use of the word “rainbowness” in the history of Anglo-American jurisprudence.

JUSTICE GINSBURG: “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.”

* * *

JUSTICE GINSBURG: “Well, suppose we . . .  make the assumption that he — if he makes custom-made cakes for others, he must make it for this pair, but he doesn’t have to write anything for anybody. He doesn’t have to write a message that he disagrees with.”

* * *

JUSTICE KENNEDY: “Suppose the couple goes in and sees the cake in the window and the cake has a biblical verse. Does he have to sell that cake.”

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JUSTICE GINSBURG: “Who else then? Who else as an artist? Say the — the person who does floral arranging, owns a floral shop. Would that person also be speaking at the wedding?”

* * *

JUSTICE GINSBURG: “How about the person who designs the invitation?”

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JUSTICE GINSBURG: “Invitation to the wedding or the menu for the wedding dinner?”

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JUSTICE KAGAN: “So the jeweler?”

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JUSTICE KAGAN: “Hair stylist?”

* * *

JUSTICE KAGAN: “Why is there no speech in — in creating a wonderful hairdo?”

* * *

JUSTICE KAGAN: “The makeup artist?” “It’s called an artist. It’s the makeup artist.

(Laughter.)

* * *

JUSTICE KAGAN: — I’m quite serious, actually, about this, because, you know, a makeup artist, I think, might feel exactly as your client does, that they’re doing something that’s of– of great aesthetic importance to the — to the wedding and to — and that there’s a lot of skill and artistic vision that goes into making a — somebody look beautiful. And why — why wouldn’t that person or the hairstylist — why wouldn’t that also count?

* * *

JUSTICE BREYER: “Well, then, what is the line? That’s what everybody is trying to get at, because obviously we have all gone into a Mexican restaurant. They have this fabulous Mole specially made for the people at the table to show what important and wonderful evening it was, which it did import — impart. There are all kinds of restaurants that do that. And maybe Ollie’s Barbecue, you know, maybe Ollie thought he had special barbecue.”

* * *

JUSTICE KAGAN: “I guess I just didn’t understand your answers to Justice Sotomayor’s question. Same case or not the same case, if your client instead objected to an interracial marriage?”

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JUSTICE SOTOMAYOR: “So how about disability; I’m not going to serve cakes to two disabled people because God makes perfect creations, and there are some religions who believe that?”

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GENERAL FRANCISCO: “Well, Your Honor, I think what it boils down to is that in a narrow category of services that do cross the threshold into protected speech — and I do think it’s a relatively narrow category — you do have protection. For example, I don’t think you could force the African American sculptor to sculpt a cross for the Klan service just because he’d do it for other religious -“

* * *

JUSTICE KENNEDY: “If you prevail, could the baker put a sign in his window, we do not bake cakes for gay weddings?”

* * *

JUSTICE KAGAN: “Which, you know — so I’ll just pick one of those. It’s like how about a — a — a — a couple, a same-sex couple goes to a great restaurant with a great chef for an anniversary celebration, and the great chef says I don’t do this for same-sex couples? How about that?”

* * *

JUSTICE KAGAN: “Okay. How about the same cake, if you don’t — if you want to, as I understand it, you want to treat the chef differently from the baker, but let’s say the same cake, and a couple comes in, a same-sex couple, and says it’s our first-year anniversary, and we would like a special cake for it.Can he then say no? No cake?”

* * *

JUSTICE KAGAN: “What if somebody comes in, it’s a baker who’s and atheist and really can’t stand any religion, and somebody comes in and says I want one of your very, very special, special cakes for a First Communion or for a Bar Mitzvah. And the baker says no, I don’t -­ I don’t — I don’t do that. I don’t want my cakes to be used in the context of a religious ceremony.”

* * *

GENERAL FRANCISCO: “Well, Your Honor, I think that the way you do it is because none of these Courts’ cases has ever involved requiring somebody to create speech and contribute that speech to an expressive event to which they are deeply opposed. And if I could go back to my example, when you force that African-American sculptor to sculpt that cross for a Klan service, you are transforming his message. He may want his cross to send the message of peace and harmony. By forcing him to combine it with that expressive event, you force him to send a message of hate and division.”

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JUSTICE SOTOMAYOR: “I — I — I am very confused -­”

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GENERAL FRANCISCO: And I would submit, just to finish up, that if you were to disagree with our basic principle, putting aside the line
about whether a cake falls on speech or non-speech side of the line, you really are envisioning a situation in which you could
force, for example, a gay opera singer to perform at the Westboro Baptist Church just because that opera singer would be willing to perform at the National Cathedral.
* * *
CHIEF JUSTICE ROBERTS: — I think there are many different faiths, but Catholic Legal Services, they provide pro bono legal representation to people who are too poor to avoid it and they provide it to people of all
different faiths. So let’s say someone just like Respondents here, except needing the pro bono assistance, goes into Catholic Legal Services
and say, we want you to take this case against Masterpiece Cakeshop. And the people at the -­ the lawyers say: well, we — we’re not going to, because we don’t support same-sex marriage. Are they in violation of the Colorado law?
* * *
JUSTICE SOTOMAYOR: And this gentleman says one of two things: If you’re same-sex, I’m not going to provide you with a rainbow cake or I don’t create rainbow cakes for weddings because I don’t believe in same-sex
marriage. I’m not going to sell it to you. I’m not going to sell it to a same — a heterosexual couple. I just don’t want to be affiliated with that concept of rainbowness at a wedding, any kind of wedding.
* * *
JUSTICE BREYER: I’m asking can you do this? Can a baker say do this? Could the baker say, you know, there are a lot of people I don’t want to serve, so I’m going to affiliate with my friend, Smith, who’s down the street, and those people I don’t want to serve, Smith will serve. Is that legal?
* * *
JUSTICE ALITO: And we have a history of — in the questioning by — of Petitioner’s counsel, we explored the line between speech
and non-speech, but as I understand your position, it would be the same if what was involved here were words. Am I wrong? If he would put a particular form of words on a wedding cake, on a cake for one customer, he has to put the same

form of words, the same exact words on a wedding cake for any other customer, regardless of the context?
* * *
JUSTICE ALITO: So if someone came in and said: I want a cake for — to celebrate our wedding anniversary, and I want it to say November 9, the best day in history, okay, sells them a cake. Somebody else comes in,
wants exactly the same words on the cake, he says: Oh, is this your anniversary? He says: No, we’re going to have a party to celebrate Kristallnacht. He would have to do that?
* * *
MR. COLE: A bakery could refuse to sell a birthday cake to a black family if it objected to celebrating black lives. A corporate photography studio could refuse to take pictures of female CEOs if it believed that a woman’s place is in the home. And a florist could put a sign up on her storefront saying we don’t do gay funerals, if she objected to memorializing gay people.
* * *
MR. COLE: Yeah, thank you. No one is suggesting that the baker has to march in the parade, as Mr. Francisco said here. What the Colorado law requires is that you sell a product — when a — when a mom goes into a bakery and says make me a happy birthday cake for my child, and then she takes that cake home for her four-year-old son’s birthday party, no one thinks that the baker is wishing happy birthday to the four-year-old.
* * *

JUSTICE GINSBURG: Would that be true — would that be true if what the message – the message, let’s say Craig and Mullins said

we would like to have on this wedding cake of ours these words: “God bless the union of Craig and Mullins.”
* * *
JUSTICE KENNEDY: Suppose that either in this case or some cases you have a very complex case — cake, and — case and cake -­
(Laughter.)
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JUSTICE KENNEDY: That — that — and you need a baker, a baker’s assistant to be right there at the wedding so you cut it in the right place and the thing doesn’t collapse. Does the baker have to attend that wedding and help cut the cake?
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JUSTICE ALITO: There are services, I was somewhat surprised to learn this, but weddings have become so elaborate, that will write custom wedding vows for you and custom wedding speeches. So somebody comes to one of these services and says: You know, we’re not good with words, but we want you to write wedding -­ a vow — vows for our wedding, and the general idea we want to express is that we don’t believe in God, we think that’s a bunch of nonsense, but we’re going to try to live our lives to make the world a better place. And the — the person who is writing this is religious and says: I can’t lend my own creative efforts to the expression of such a message.
* * *
JUSTICE GORSUCH: Well, let’s take -­ let’s take a case a little bit more likes ours, and — and it doesn’t involve words, but just a cake. It is Red Cross, and the baker serves someone who wants a red cross to celebrate the anniversary of a great humanitarian organization. Next person comes in and wants the same red cross to celebrate the KKK. Does the baker have to sell to the second customer? And if not, why not?
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JUSTICE ALITO: Along the same lines as the Chief Justice’s question, would you say that Colorado can compel a religious college that — whose creed opposes same-sex marriage to provide married student housing for amarried same-sex couple or allow a same-sex wedding to be performed in the college chapel?