The Masterpiece Cakeshop case was billed as one of the most important religious liberty cases of our time. Yet none of us in the Supreme Court on December 5, 2017, expected to witness one of the most intense courtroom dramas of our lifetime.
We were there because we had filed “amicus curiae” briefs in support of petitioner Jack Phillips, the Denver cake artist who serves any customer, but who does not do every event, e.g., custom wedding cakes for same-sex weddings. We sat in the section for Supreme Court bar members, giving us a ringside seat for the judicial jousting that was to unfold. (Michael was counsel for Southern Baptists and Missouri Baptists, along with some Christian colleges and other religious associations. Jon had filed an amicus brief on behalf of 86 members of Congress, including Senators Cruz, Lankford and Sasse, and MO Rep. Vicky Hartzler.)
ADF attorney Kristen Waggoner was scheduled to argue for 20 minutes for Jack, and then yield 10 minutes to US Solicitor General Neil Francisco on behalf of the Trump Administration, who had also filed a friendly brief supporting Jack. Then the Colorado Solicitor General Fred Yarber was to have 20 minutes, followed by ACLU’s David Cole for 10. (Cole represented the same-sex couple, Charles Craig and David Mullins.) Then Mrs. Waggoner would have 5 minutes for rebuttal.
Time limits constrain everyone but the justices, and the Chief Justice as timekeeper was generous in allowing questions and answers to continue long after the red light atop the podium went on for each speaker. At the end of rebuttal, it was 11:42 AM, about 90 minutes of argument, 30 minutes overtime. And what an action-packed 90 minutes it was!
Oral argument is about answering the justices’ questions, so interruptions are expected. But after her first sentence of introduction, Kirsten Waggoner was hit with a deluge of questions, statements and hypothetical examples by the Lady Justices and Justice Breyer. A rapid-fire succession of examples was inter-mixed with long stories about a Mexican mole or a smashed cupcake. It was like a 3-on-1 game of “keep away,” while the clock runs out. At times Mrs. Waggoner would get 4-5 words out before her answer was cut off by the next hypothetical, the next question, or a terse command from Justice Sotomayor: “Answer my question.” Tr. 21 Forget the “please and thank you” niceties. This is the Wedding Wars. In the five-minute rebuttal, Justice Sotomayor seized the mic before Mrs. Waggoner got one word out and then filibustered with 371 words compared to Mrs. Waggoner’s 534 words. Tr. 96 ff. A Supreme Smack Down. (References to the official transcript in this memo are indicated by “Tr. p#”.
The State and the Couple
Conservative justices also asked hard questions to the Colorado Solicitor and to the ACLU. Chief Justice Roberts posed a well-thought hypothetical about a Catholic Legal Services corporation which provided pro bono legal services to anyone, but would not do certain things which would require them to affirm same-sex marriage. Respondents’ counsel said the Catholic lawyers could be compelled to provide such services, even in violation of Catholic religious belief.
Justice Neil Gorsuch asked Mr. Yarger why the Commission order compelling Jack Phillips to “train his staff” would not violate free speech and free exercise, since it forces Jack to “teach … to his family” that the state thinks his beliefs are discriminatory. Yarger, assisted by Justice Ginsburg, said the law only forced Phillips to say what the law required. Tr. 69-70.
When ACLU’s Cole said Phillips had refused to serve to the gay couple because of their “identity” and not the message inherent to the cake, Justice Kennedy pushed back that Phillips’ decision was not based on who the customers are but what they are doing. Kennedy called the identity argument “facile.” Tr. 87.
Justice Alito asked whether Colorado can compel a college with religious roots whose creed opposes same-sex marriage to provide married student housing for a married same-sex couple or allow a same-sex wedding to be performed in the college chapel. Yes, said ACLU’s Mr. Cole, depending on certain facts. Justice Gorsuch joined in pressing for a clear answer. Tr. 93-94
God bless Ruth and Marty
One surprise came when Justice Ginsburg asked: if the cake artist had done a custom cake with words inscribed in icing: “God bless the union of Ruth and Marty,” (a tender reference to herself and her late husband), then could the artist be compelled by the Colorado law to write “God bless the union of Craig and Mullins” on a same-sex wedding cake? Yes, the ACLU said, that would be compulsory. Tr. 76.
Many of the hypothetical questions assumed that religious disapproval of same-sex marriage was morally equivalent to racism which some have tried to justify on religious grounds in our history. The liberal justices worried that allowing Jack to discriminate against same-sex marriage based on religious conscience would create a slippery slope where many businesses would seek to justify race discrimination on religious grounds. Chief Justice Roberts suggested that the analogy to race did not fit. He reminded the ACLU lawyer that the Obergefell decision, written by Justice Kennedy, “went out of its way to talk about the decent and honorable people who may have opposing views. And to immediately lump them in the same group as people who are opposed to equality in relations with respect to race, I’m not sure that takes full account of that — of that concept in the Obergefell decision.” Tr. 73-74.
Obergefell and Believers in Biblical Marriage
In the amicus brief we filed for Missouri Baptists and other Southern Baptists, we elaborated on the argument which the Chief made succinctly here. We said Obergefell promised that religious believers and organizations would remain secure in their constitutional right to believe, teach and live out their sincere religious convictions that marriage is between a man and woman, and that same-sex marriage should not be condoned. The promise was unmistakable and unambiguous:
“Marriage, in their view, is by its nature a gender-differentiated union of man and woman. This view long has been held – and continues to be held – in good faith by reasonable and sincere people here and throughout the world. Id., 2594
“Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. Id., 2602
“It must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” Id., 2607
Justice Kennedy, in writing the above words in Obergefell, seemed to be proclaiming his personal respect for traditional biblical views about marriage and giving his personal pledge that the Court would be tolerant of people who lived out this faith. There was no condemnation of these religious views as being based on hatred or malice or animus. He would not have used such affirming words had he been talking about racist views based on twisted scripture.
For this reason, perhaps it should not have been surprising that Justice Kennedy would take almost personal offense at the way the State of Colorado treated Jack Phillips and his biblical view of marriage. But it did surprise us. It surprised everyone.
Do you disavow?
Speaking to the Colorado Solicitor, Kennedy asked about a statement in the record by the Colorado Civil Rights Commission:
“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?” Tr. 51.
Mr. Yarger, somewhat awkwardly, said no.
“Do you disavow or disapprove of that statement?” Kennedy pressed bluntly, noticeably irritated.
“I would not have counseled my client to make that statement,” a nervous solicitor equivocated.
“Do you now disavow or disapprove of that statement?” Kennedy asked in his best prosecutorial tone of voice.
“I — I do, yes, Your Honor,” Mr. Yarger said weakly, halting as if stunned by what had just happened. Tr. 52.
And we all were. We had never seen anything like this before in the Court. The Justice with the swing vote had just forced the lawyer for Colorado to renounce his client’s bigoted statement. Mr. Yarger may have been thinking to himself, “This is a bad day in the Supreme Court. It can’t get much worse than this.”
But it did get worse. A few minutes later, Justice Kennedy dropped the bombshell.
Tolerance and respect
“Counselor, tolerance is essential in a free society. And tolerance is most meaningful when it’s mutual,” Kennedy begins. “It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.” Tr. 62.
No question. Just a declaration of the Justice’s opinion that the State’s religious bias was showing. It’s as though Justice Kennedy has observed since 2015 that States are mostly respecting the “dignity interests” of same-sex couples, but they are not doing as good a job keeping his promise that the First Amendment will ensure that “religious persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered.” Obergefell, 2607
Religious Viewpoint Discrimination
Justice Alito extended the argument about the State treating Jack’s views differently from those bakers who support same-sex marriage. Tr. 58.
“One thing that’s disturbing about the record here, in addition to the statement made, the statement that Justice Kennedy read, which was not disavowed at the time by any other member of the Commission, is what appears to be a practice of discriminatory treatment based on viewpoint.
“The — the Commission had before it the example of three complaints filed by an individual whose creed includes the traditional Judeo-Christian opposition to same-sex marriage, and he requested cakes that expressed that point of view, and those — there were bakers who said no, we won’t do that because it is offensive.
“And the Commission said: That’s okay. It’s okay for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage. But when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage.”
Justice Sotomayor’s filibuster during the final five-minute rebuttal contained an interesting sermonette on how the law can be a tutor – or better yet, an enforcer of secular dogma.
JUSTICE SOTOMAYOR: Counsel, the problem is that America’s reaction to mixed marriages and to race didn’t change on its own. It changed because we had public accommodation laws that forced people to do things that many claimed were against their expressive rights and against their religious rights. It’s not denigrating someone…to say: If you choose to participate in our community in a public way, your choice, you can choose to sell cakes or not. You can choose to sell cupcakes or not, whatever it is you choose to sell, you have to sell it to everyone who knocks on your door, if you open your door to everyone. Tr. 100-101
In this worldview, government can legislate morality. Force people to change their behavior, and eventually you can force them to change their beliefs. So much for freedom of conscience.
Michael’s brief for Southern Baptists alluded to the 500th Anniversary of Martin Luther’s 95 Theses in 1517, and to the Diet of Worms in 1521 where Luther was asked to recant his writings. Luther famously refused to recant, for conscience sake. We made this analogy:
“Free exercise rights extend to secular vocations as well as sacred. Most church members and college students will work in the secular marketplace rather than vocational ministry, yet they often feel “called” to their occupations. Their goal is to integrate work and witness. If told they cannot witness to the truth through their work, or worse, that they must affirm a message that is false, they must resist. Their “conscience is captive to the Word of God” and they will not “recant.” If the government demands otherwise, they will leave their businesses before they will dishonor God and His call on their lives. “We must obey God rather than men.” Acts 5:29 They believe they would be complicit if they approved in their business what God has disapproved in His Word.”
On the day of this historic argument, we witnessed the Justice with the deciding vote ask the lawyer for the State of Colorado to recant. Disavow the derogatory words the State had written about Mr. Phillips’ biblical view of marriage. And recant he did.
Predictions and Prayers
Many legal observers, left and right, are predicting a 5-4 ruling in favor of Jack Phillips, with a narrow opinion that condemns state laws which fail to make reasonable accommodations for people with a biblical view of man-woman marriage. We pray the opinion will protect the right to believe, teach and live out their sincere religious convictions that marriage is between a man and woman, and that same-sex marriage should not be condoned. That was the unmistakable and unambiguous promise of Obergefell.
Justice Kennedy has authored every major modern decision by the Court regarding same-sex marriage. He has advocated for dignity interests, for tolerance and respect. Some say he may retire this year, and this case may well define his legacy on these issues. No one can predict a certain outcome based on his comments on December 5, 2017, but there is at least good reason to hope that he will join with the four conservative justices to rule in favor of Jack Phillips’ religious liberty, insisting that the Court must delicately balance the rights to sexual liberty and the rights to religious liberty in American life, even in the marketplace, with mutual tolerance and respect.
We expect a decision to be announced before the summer recess begins on June 30. There is still time to pray.