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Kennedy Ready to go Trump on Civil Rights Enforcement


Today’s oral arguments in Masterpiece Cakeshop look bad:

There’s no way to sugarcoat the oral arguments in Masterpiece Cakeshop v. Civil Rights Commission, a landmark Supreme Court case asking whether a religious baker who objects to same-sex marriages is allowed to defy Colorado’s anti-discrimination law. Justice Anthony Kennedy, the key swing vote and the only conservative on the Court who has shown much sympathy for LGBTQ rights, appears almost certain to side with Jack Phillips, the baker in this case.

Though there is a chance that Kennedy could side with Phillips on narrow grounds, Masterpiece Cakeshop could potentially give religious conservatives sweeping power to engage in discrimination.Phillips appears likely to win despite fairly inept lawyering by his attorney, the Alliance

Defending Freedom’s Kristen Waggoner. For most of her time at the podium, Waggoner seemed to tie herself in knots — unable to explain which individuals should be exempt from civil rights laws and which ones should not. At one point, she even whiffed an a softball pitched to her by staunchly conservative Justice Samuel Alito.

Meanwhile, Andy Koppleman has a good piece about how specious the argument that was apparently sold to Kennedy is:

But this is not the issue in Masterpiece Cakeshop. Unlike Northern Ireland, Colorado is not telling Phillips what words he must put on his cake. It is merely telling him that if he sells any products to heterosexual couples, he must sell the same products to same-sex couples. He is free to refuse to write “Support Gay Marriage” on any cakes that he sells, so long as he refuses that to both gay and heterosexual customers.
So this is an easy case. Phillips should lose.

Much of the argument on behalf of Phillips mischaracterizes the facts to make his case look more like Ashers Bakery. He cites evidence that Craig and Mullins wanted a “rainbow-layered” cake. “Given the rainbow’s status as the preeminent symbol of gay pride, Craig and Mullins’s wedding cake undeniably expressed support for same-sex marriage.”

But Phillips did not know that. He had no idea what they were going to ask for. He refused service before he found out anything about what Craig and Mullins wanted to buy. His arguments are a series of elaborate pirouettes around this inconvenient fact.


The Court’s extension of the compelled-speech doctrine in this offhand sentence in the Boy Scouts case (which was primarily about freedom of association) has absurd implications. Federal regulations now require cars to have airbags. The federal government adopted these regulations despite the resistance of automobile manufacturers. When new cars conspicuously have airbags, this is reasonably understood as sending a message that airbags are necessary to make cars safe and that their inclusion is cost-justified. The car manufacturer may dissent from that message, but does the company have an argument that its First Amendment rights are being violated by requiring airbags? Although the Court could reinvigorate the principle it stated in the Boy Scouts case, the consequence would be anarchy. It would allow anyone to violate any law if obeying it would conventionally be taken to convey a message with which the objector disagrees.

There is a similar absurdity in Phillips’s claim that the state is discriminating on the basis of viewpoint because the antidiscrimination law, as applied, “favors cake artists who support same-sex marriage over those like Phillips who do not.” The law makes no reference at all to viewpoint. It just prohibits discrimination. It is true that the law favors those who oppose the conduct it prohibits over those who would like to engage in it. But that is true of every law. Again, there is no way to articulate the principle behind this claim that is not an invitation to chaos.

Kennedy will almost certainly want language in the majority opinion (whether he writes it or not — this seems like a good case for Alito’s fake minimalism too) saying that finding for Phillips will have only narrow implications. But given the facts of the case, that’s impossible unless the Court doesn’t expect future courts to take the case seriously.

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