Wednesday, December 6, 2017
Thanks to Marc for describing how the free-exercise claim in Masterpiece Cakeshop took on more prominence than most people expected in Tuesday's oral argument. Doug Laycock and I have a piece in the New York Daily News explaining the free-exercise argument detailed in our amicus brief, and how it seemed to attract several justices' interest Tuesday. From the piece:
Justice Samuel Alito called it “disturbing” that the other three bakers could “refuse to create a cake with a message that is opposed to same-sex marriage,” but “when the tables are turned,” Phillips was “compelled to create a cake that expresses approval of same-sex marriage.”
Justice Anthony Kennedy, likely among the swing votes, raised another piece of evidence. One of the state commissioners who ruled against Phillips stated that “freedom of religion . . . used to justify discrimination . . . is one of the most despicable pieces of rhetoric.”
Not content to criticize Phillips’ traditionalist view of marriage, the commissioner invoked slavery and the Holocaust as comparisons. No wonder Kennedy suggested the case involved “a significant aspect of hostility to a religion.”
I should say that our amicus brief did not emphasize "animus" or hostility as the essence of the free-exercise violation. We focused on the state's objective discrimination in protecting the other bakers and refusing to protect Phillips, while making (in the case of the state court) flatly inconsistent arguments concerning the two situations. If the free-exercise claim indeed prevails, it will be interesting to see how much it depends on a finding of animus and how much on the objective differential treatment.
Our brief also emphasized the importance of protecting both sides in the conflict between same-sex couples and religious traditionalists. Although oral argument is always an uncertain indicator, it was encouraging to see Justice Kennedy, the author of Obergefell, sound that same theme in the oral argument. From our Daily News piece:
On Tuesday, echoing his earlier argument for gay couples, Kennedy summed up this case: “[T]olerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”