Tuesday, December 5, 2017
The Masterpiece Cakeshop case was argued today before the Supreme Court. Most of us ordinary folk thought that the compelled speech argument was going to be the show. That still may turn out to be the case, since reading oral argument for clues as to the decision is not so reliable.
Still, reading through the transcript today, and in particular the colloquy among JJ. Kennedy, Alito, Gorsuch, the Chief, and counsel for Colorado, it seemed to me that the Free Exercise Clause was the surprise of the day. Those justices were pretty focused on the "animus" exhibited by one of the Colorado Civil Rights commissioners, additional comments in a similar vein by a second, and (especially in J. Alito's questioning--see 58-59) evidence that the Commission found no fault with bakers who refused to make cakes for clients who espoused views critical of homosexuality--indeed, that approved such decisions "in light of the offensive nature of the requested message." See Masterpiece Cakeshop, 370 P.3d at 282 n.8.
I didn't expect the Free Exercise Clause claim to make any headway. But this is exactly what Tom Berg and Doug Laycock emphasized in their fine brief (which was noted by counsel at oral argument). I've got my own reservations about animus arguments. But kudos to the two of them for making this argument. Who would have thought that this might be the case to give the utterly desiccated Free Exercise Clause a little juice?