From the Vault: Potential Supreme Court Blockbuster Term Leads Off with Masterpiece Cakeshop Argument

By Professor Arthur S. Leonard. This article appeared in LGBT Bar NY’s LGBT Law Notes, December 2017. Subscribe here

As December began, media interest peaked with the anticipated argument in the Supreme Court on December 5 in Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission. The case presents the question of whether a bakery whose proprietor has religious objections to same-sex marriage enjoys a constitutional privilege to refuse the business of a same-sex couple, who sought to buy a wedding cake for their reception, in a state that bans sexual orientation discrimination in public accommodations under its Civil Rights statute. More than one hundred amicus briefs have been filed in the case. Numerous print and electronic publications editorialized about the case in the weeks leading up to the argument, overwhelmingly siding with the complainants Charlie Craig and David Mullins and the respondent, Colorado Civil Rights Commission, who maintained that baker Jack Phillips and his business do not enjoy such a constitutional privilege to violate the state law.

The already-high profile of the case was elevated in public attention when the Trump Administration decided to weigh in with an amicus brief and successfully sought to participate in the oral argument on behalf of the petitioner, although — curiously, given Trump’s religious freedom executive order and Attorney General Sessions’ religious freedom memorandum — the government’s brief disclaimed reliance on the Free Exercise Clause, focusing entirely on the argument that requiring a baker to make a wedding cake for a same-sex couple violated the baker’s right to refrain from publicly expressing approval of same-sex marriages, a compelled speech argument under the Free Speech Clause. It was reported that there was a sharp divide within the Justice Department over participation on behalf of the petitioner, with career staff resistant to arguing in favor of an exemption from state public accommodation laws. It is worth noting that, at present, federal public accommodations laws do not expressly address the issue of discrimination because of sex, sexual orientation, or gender identity; passage of the Equality Act, which would add those categories to federal law, would elevate the issue to the level of federal law enforcement.

Most commentators writing in advance of the argument predicted that the decision would come down to the views of Justice Anthony M. Kennedy, the author of the Court’s quartet of extraordinary pro-gay opinions in Romer v. Evans, Lawrence v. Texas, United States v. Windsor, and Obergefell v. Hodges. Commentators opined that Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan would side with the respondents, and that Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would likely side with the petitioner. Because Justice Kennedy has a strong track record in support of freedom of speech and religion as well as of opposition to anti-gay discrimination, predicting where he would end up was difficult. For those seeking portents from last Term, the Court’s per curiam decision in Pavan v. Smith to give a broad reading to Obergefell as requiring equality of treatment for same-sex married couples by the government provided some comfort, although the dissent by Justice Gorsuch (signed also by Justices Alito and Thomas) seemed to foreshadow three votes for the petitioner in Masterpiece. To the Law Notes editor, it seems likely that if Kennedy sees this case as another attempt by opponents of marriage equality to chip away at what Kennedy identified as a fundamental constitutional right, he would be likely to support respondents, but prediction in advance of oral argument is difficult. In the January 2018 issue of Law Notes, we will provide an account of the argument. In the LGBT rights cases mentioned above, comments and questions by the justices during oral argument provided strong clues to the Court’s rulings in all four cases.

The Court allocated time for oral argument as follows: Twenty minutes for Kristen Kellie Waggoner of Alliance Defending Freedom in support of the petitioner (including any time reserved for rebuttal), ten minutes for Solicitor General Noel J. Francisco representing the Trump Administration in support of the petitioner, fifteen minutes for Colorado Solicitor General Frederick R. Yarger, representing the respondent Colorado Civil Rights Commission, and fifteen minutes for David Cole of the American Civil Liberties Union, representing complainants Charlie Craig and David Mullins. The Court posts a transcript of the oral argument on its website during the afternoon of the argument day, and posts a link to an audio recording of the argument by the end of the week.

If Masterpiece Cakeshop is the only LGBT-related decision by the Court this term, it will be a momentous term. But the number of petitions for certiorari that were pending before the court in LGBT-related cases by the end of November suggested that Masterpiece is not likely to be the only such case decided by the Court this term. At least four of the pending petitions were scheduled for consideration by the Court during its conferences in December or January. The pending petitions were: Arlene’s Flowers v. Washington, another ADF case presenting the same issues as Masterpiece Cakeshop with respect to floral arrangements for same-sex weddings; Kenosha Unified School District v. Whitaker, in which the school district seeks review of a 7th Circuit ruling that a school district’s policy prohibiting transgender students from using restrooms consistent with their gender identity violates Title IX and the Equal Protection Clause; Evans v. Georgia Regional Hospital, in which Lambda Legal appeals the 11th Circuit’s ruling that sexual orientation discrimination, as such, is not prohibited by Title VII’s ban on sex discrimination in employment; Turner v. Pidgeon, in which the City of Houston appeals the Texas Supreme Court’s conclusion that Obergefell leaves open the question of whether a public employer is required to treat same-sex and different-sex marriages equality under its employee benefits plans [Editor’s Late Note: The Court denied certiorari in this case on December 4, as we were finishing work on this issue of Law Notes, Barber v. Bryant, Lambda Legal’s appeal from the 5th Circuit’s ruling that plaintiffs did not have standing to challenge the constitutionality of Mississippi’s anti-LGBT H.B. 1523, which was challenged as a violation of the 1st Amendment Establishment Clause; and Campaign for Southern Equality v. Bryant, another appeal from the same 5th Circuit standing ruling regarding a challenge to H.B. 1523. The 5th Circuit had combined two separate challenges against H.B. 1523 to be heard together, but the two plaintiff groups have separately petitioned the Supreme Court for review. Lead counsel for CSE is Robbie Kaplan, who successfully argued for Edith Windsor in the Supreme Court challenge to DOMA and represented CSE in litigation striking down Mississippi’s ban on same-sex marriage.

The Supreme Court publishes the list of cases it will potentially discuss at its conferences, but listing does not necessarily mean that a decision on certiorari will be made at that conference. Masterpiece Cakeshop was listed numerous times during the October 2016 Term, but the Court did not reach a decision on certiorari until Justice Gorsuch took the bench. As of the beginning of December, Turner and Arlene’s Flowers were listed for the December 1 conference, and an announcement as to those cases might be made by the time this issue of Law Notes is published. Evans was listed for the December 8 conference. Barber was listed for the January 5 conference. Kenosha and Campaign for Southern Equality will not be listed until all filings in response to the certiorari petitions have been made. Going by the Court’s published rules, which suggest the factors considered in granting a petition, all of these cases present plausible grounds, but perhaps the most compelling are the Kenosha and Evans cases in light of the differing views of lower federal courts on how to interpret laws banning discrimination because of sex in the context of sexual orientation and gender identity. If the 2nd Circuit was to issue its pending en banc ruling in Zarda v. Altitude Express on the Title VII issue before December 8, and, as widely expected, lines up with the 7th Circuit in finding sexual orientation claims actionable under that statute, the case for granting the petition in Evans would be even more compelling.

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