December 5, 2017 3:55PM

Justice Kennedy Will Be Top Chef in Masterpiece Cakeshop Case

After this morning's Supreme Court argument in the Colorado wedding-cake case, the only thing that safe to predict about this case is that it’ll end up 5-4. It’s perhaps unavoidable that a case so politically fraught would break down on conventional ideological lines, with the four “conservatives” (presumably including the silent Justice Clarence Thomas) siding with the baker who didn’t want to create a custom cake for a same-sex wedding, the four “liberals” siding with the couple that wants to use the state’s anti-discrimination law to compel him to do so, and Justice Anthony Kennedy somewhere in the middle. But it’s disappointing -- and it’s especially disconcerting that Justice Sonia Sotomayor kept comparing this case to Piggie Park, Katzenbach v. McClung, and other cases from the Jim Crow Era when African Americans were denied service at restaurants altogether.

It's telling that none of the wedding-vendor cases we've seen in the courts (or in the news) the last few years have involved any business that refuses to serve gay people altogether. Jack Phillips certainly has -- and offered to sell Charlie Craig and David Mullins anything on display in his store -- as has Barronelle Stutzman, the Washington florist whose fate likely depends on the outcome of Masterpiece Cakeshop v. Colorado Civil Rights Commission. We simply don't have situations like we did in the 1960s when businesses claimed both a religious and expressive right not to accept racial minorities as customers.

If some business, wedding-related or otherwise, didn't want to serve gay people, that would be an easy case under Supreme Court precedent (leaving the question of the common-law freedom of association to one side). Instead, it’s quite clear to me that not wanting to convey a message of affirmation for a particular event is different from refusing to serve people based on their identity -- and also that Jack Phillips’s gorgeous sculptures are just as protected by the First Amendment when made with fondant as they would if made with plaster.

Indeed, unless a "BBQ artist" is asked to concoct some sort of meat-statue with his tender-smoked goodness, there's no parallel here. That's why we wrote in our brief that "wedding (and other) vendors who produce and sell expressive works must be free to accept or reject particular jobs, [but] this right does not apply to those who do not engage in protected speech." "Creating expressive [products] is constitutionally different than nonexpressive activity like delivering food, renting out ballrooms, or driving limousines."

But that position may not get five votes; Justice Kennedy seemed to focus on the religious animus at play, as well as the uneven way in which the Colorado Civil Rights Commission has applied its law. Indeed, in a line of questioning that has provoked the most pessimism from the pro-force forces, he highlighted that “tolerance is essential in a free society.” In an echo of his opinion in Obergefell, the case that two years ago established same-sex couples' right to marry, Kennedy said, "It seems to me that the state in its position here has been neither tolerant nor respectful."

Still, it’s hard to see the grand champion of free speech forcing a baker (or anyone) to express a message he disagrees with, regardless of the implications for religious freedom. As he wrote in Obergefell, "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. The same is true of those who oppose same-sex marriage for other reasons." It just shouldn't matter whether an artistic professional declines a expressive commission for reasons that are religious, secular, or "good" or "bad" -- or none at all.

There are many ways the Supreme Court could slice this case, with many dividing lines that are anything but half-baked. But, to carry over a theme from yesterday’s case, I wouldn’t bet on any particular outcome.

You can read the argument transcript here and, for an audio-visual version of the same sort of debate, see video of my debate at Cato yesterday.