Josephine Mason and Adam Hofmann

This Term’s highest-profile case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111, pits a same-sex Colorado couple against a cake-maker who refused to bake a cake for their wedding. The Justices appear poised to disagree on many facets of this case, which raises knotty questions of free speech, religion, and the role of the State in ensuring equal dignity—on both sides—in the marketplace. Reading between the lines during the Masterpiece Cakeshop oral arguments last Tuesday, we may get a sense of where the court is headed.

Justices: Where to draw the line?

If there’s one thing the Justices could agree on, it’s the need to determine where to “draw the line.” The Justices and advocates all wrestled with various counterfactuals and hypotheticals to measure the impact of any proposed rule of decision.

As Justice Kagan observed, there are three potential “axes” on which the case may turn. The first is to what extent a wedding cake should be considered a medium of expression or just something pretty to eat. Justices Sotomayor and Kagan appeared particularly doubtful that the preparation of a cake, even a really good cake, constituted expressive conduct or an endorsement of the activity where the cake would be served. The second axis is whether the Petitioners’ argument would be limited to same-sex marriage, or whether it could extend to other ceremonies, like funerals, Bar Mitzvahs, or Communions. The third is whether the Cakeshop’s same arguments, if adopted, would apply with equal force to create exceptions to all anti-discrimination laws—including those prohibiting race discrimination. The Justices and the advocates dedicated much of their time to debating this last question, with Justice Breyer most vocally expressing his concern over this issue.

What about religious objections to Civil Rights Era laws?

The attorney for the Cakeshop contended that racial discrimination is qualitatively different than all other types of discrimination—hence the strict scrutiny with which the court examines such issues. Some Justices did not seem persuaded.

Justice Sotomayor observed that in the Civil Rights Era, the court rejected an argument that racial discrimination could be excused based on a religious objection. See Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 400 n.5 (1968) (per curiam). Justice Breyer and Justice Kagan both referenced Ollie’s Barbecue, another Civil Rights Era case in which the court rejected a challenge by a restaurant owner to the then-newly enacted Civil Rights Act. See Katzenbach v. McClung, 379 U.S. 294, 303-04 (1964). As Justice Breyer put it, “we want some kind of distinction that will not undermine every civil rights law[.]”

These concerns tracked those of the Respondents and amici curiae Behavioral Science and Economics Scholars (represented by the undersigned authors), who observed that similar points have been recast as faulty “economic” arguments both in this case and in Civil Rights Era cases like Ollie’s Barbecue.

As the couple’s attorney summarized: once you allow religious- or speech- based exceptions to generally applicable civil rights laws, “you’re in a world in which every man is a law unto himself.” See Empl. Div., Dep’t of Human Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990) (Scalia, J.). This point appeared to resonate more with Justices Roberts and Gorsuch than the couple’s other arguments.

Justice Kennedy: Are we seeing religious animus?

Popular opinion holds that Justice Kennedy will cast the deciding vote in this case, but it is not entirely clear how he is leaning. On one hand, he suggested that allowing public businesses to advertise that they “do not bake cakes for gay weddings” would be an “affront to the gay community,” echoing the sympathy he has shown for the rights and dignity of same-sex couples previously.

On the other hand, Justice Kennedy also exhibited concern for the dignity of religious business owners. He appeared particularly concerned with comments made by some members of the Colorado Civil Rights Commission suggesting an anti-religious animus on the part of one or two of the Commissioners. Justice Gorsuch echoed this sentiment, as did the Chief Justice, Justice Alito, and Justice Breyer. As Justice Kennedy reflected, tolerance must be a two-way street.

These conflicting concerns over equal dignity for both parties may suggest indecision by Justice Kennedy. A careful reading of his questions, however, may suggest the line he would draw in this case. Two of the cases that were discussed during the argument were Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1989), and Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993). Taken together, those cases stand for the proposition that general laws of neutral applicability do not trigger strict scrutiny under the Free Exercise Clause of the First Amendment, even if they have the effect of burdening religious practice, so long as the laws were not motivated by actual anti-religious sentiment.

Following his own decision in Lukumi Babalu Aye, Justice Kennedy could find that this case turns on whether members of the Commission harbored “animosity to religion or distrust of its practices.” 508 U.S. at 547. That could allow the Justices to approve Colorado’s protections for same sex couples, preserve civil-rights laws throughout the country, and still leave room for religious objectors to be heard in cases where the government actively discriminates against them. If the court takes this route, a remand may be in order to resolve the factual question of what motivated the Colorado Civil Rights Commission’s decision.

If Justice Kennedy follows this approach it could also set up a plurality decision, with other Justices ruling, variously, that public-accommodation laws can never be challenged on religious grounds—tracking Newman v. Piggie Park—and others ruling that the State of Colorado overstepped no matter its subjective motivations. Ultimately, however, it appears that the court will strive to draw clear lines while respecting the dignity of all interests at stake.

Adam Hofmann is a partner with Hanson Bridgett LLP and vice chair of the firm’s appellate practice. Josephine Mason is an associate with the firm, focusing on dispositive motions, writs, and appeals, and a former clerk with the Fifth Circuit Court of Appeals. They authored an amicus brief in ‘Masterpiece Cakeshop’ on behalf of a group of behavioral science and economics scholars.