In 2012, Colorado baker Jack Phillips made national headlines when he refused to make a wedding cake for David Mullins and Charlie Craig, a gay couple. Phillips long held that making the cake for the couple would conflict with his religious beliefs, and is now — five years later — defending his decision in the Supreme Court. The argument he and his lawyers are making, in essence, is that his cake is art, a form of speech, and that by forcing him to bake a wedding cake for a gay couple, the government is infringing upon his first amendment right to freedom of speech.
In the courtroom on Monday, though, Phillips' argument went through the ringer when Justice Sonia Sotomayor, among others, pointed out the ramifications of declaring a custom wedding cake a form of speech.
Justice Sotomayor began by — seemingly — pointing out the absurdity of the argument at hand to Phillips' attorney, Kristen Waggoner.
"The primary purpose of a food of any kind is to be eaten," she said. "Now, some people might love the aesthetic appeal of a special desert, and look at it for a very long time, but in the end its only purpose is to be eaten."
"The First Amendment prohibits the government from forcing people to express messages that violate religious convictions," Waggoner argued. "Yet the Commission requires Mr. Phillips to do just that, ordering him to sketch, sculpt, and hand-paint cakes that celebrate a view of marriage in violation of his religious convictions."
Thus they arrived at the crux of Waggoner and Phillips's case: that the cakes are so expressive, so artful, that they qualify as a form of speech.
Sotomayor and the other justices peppered Waggoner and her legal team with questions: wouldn't, then, a chef be expressing speech? And couldn't a chef choose not to serve certain people because he or she felt that by serving them they'd be expressing speech they didn't want to? Wouldn't a makeup artist be expressing speech through how they transform a client? What about a tailor who customizes clothes?
"Your Honor, the tailor is not engaged in speech, nor is the chef engaged in speech," Waggoner said. "The test that this court has used in the past to determine whether speech is engaged in is to ask if it is communicating something, and if whatever is being communicated, the medium used is similar to other mediums that this court has protected."
"Woah, the baker is engaged in speech, but the chef is not engaged in speech?" Justice Elena Kagan interjected. "A makeup artist, I think, might feel exactly as your client does, that they're doing something that's of great aesthetic importance to the wedding."
Solicitor General Noel Francisco didn't seem to fare much better against the barrage of questions from the justices, particularly Sotomayor. Francisco argued that the free speech clause protects a very narrow subset of artists, making the point that an African American sculptor would never be compelled by the government to create a cross for a Ku Klux Klan member. He continued that a baker putting a sign in his window that he does not make custom cakes for gay weddings would not cross the "threshold" into discrimination. Asked whether he worried this was an affront to the dignity of the LGBT community, Francisco pleaded with the justices to consider the dignity of his client.
Sotomayor, though, didn't appear to appreciate this argument. "Sometimes it's not just dignity," she said.
"Most military bases are in isolated areas far from cities and that they're in areas where the general population, service population, is of one religion or close to one religious belief. So where there might be two cakebakers. And in those situations, they posit, and I don't think probably wrongly, that it may come to pass where the two cake bakers will claim the same abstention here. So how do we protect the military men and women who are of the same sex who want to get married in that town because that's where all their friends are, because the base is there?"
Francisco's response, that in such a case the court would be entitled to "heightened scrunity because their interests in providing access to goods and services would be narrowly tailored," didn't satisfy the justice. He was in a sense arguing that in that specific case the court would be compelled to step in, but in this case his client was not preventing the couple from finding a cake.
Sotomayor reminded Francisco that in all of the cases where LGBT people have been humiliated, disrespected or treated uncivilly, that the court has ruled there is certain behavior — no matter your belief system — that you simply can't engage in lawfully.
Waggoner stepped back in to argue that Mr. Phillips' protections could just as easily be invoked by a lesbian woman, because they had nothing to do with discrimination or the person, but simply not wanting to have his speech compelled by the government.
"Demeaning Mr. Phillips' honorable and decent religious beliefs about marriage, when he has served everyone and has a history of declining all kinds of cakes unaffiliated with sexual orientation because of the message, he should receive protection here as well," Waggoner said. "This law protects the lesbian graphic designer who doesn't want to design for the Westboro Baptist Church, as much as it protects Mr. Phillips."
Sotomayor, again, stepped up to respond to Waggoner's argument.
"Counsel, the problem is that America's reaction to mixed marriages and to race didn't change on its own," she said. "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."
She went on to say that it isn't denigrating to tell someone who has chosen to participate in a community in a public way — by owning a business, for example — that they must have their door open to everyone.
Allies of the LGBT community worry that if Phillips and Masterpiece Cakeshop prevail, it'll open the door to more discrimination against gay people in more businesses across the country. Justice Anthony Kennedy, often seen as the swing justice on the court, seemed to once again empathize with both sides.
Sotomayor is widely considered one of the more progressive judges on the Supreme Court, and based on the opening oral arguments it was clear not all the justices agree with her line of questioning. The court's tension closely resembles the national debate on the issue, which in 2012 caused an uproar and drove a wedge between America's most religious citizens and allies of the LGBT community. Towards the end of the opening oral arguments, Justice Sotomayor jumped in one last time to lay out her view of America.
"We've always said in our public accommodations law we can't change your private beliefs," Justice Sotomayor said. "But if you want to be a part of our community, of our civic community, there's certain behavior, conduct [that] you can't engage in. And that includes not selling products that you sell to everyone else to people simply because of their race, religion, national origin, gender, and, in this case, sexual orientation."