Will Justice Kennedy Let Us Eat Our Damn Cake?

The Supreme Court is split on yet another critical case on LGBTQ rights. The ruling will yield either an anti-discrimination precedent, or yet another slap in the face to civil rights.

Another day, another Supreme Court case about whether LGBTQ people can enjoy basic rights in the United States of America. And, as always, it’s going to come down to Justice Anthony Kennedy. Will he cement his legacy as a moderate justice who ultimately championed same-sex rights, or will he throw in with the conservatives before he leaves the court?

This time around, it’s about whether we can buy cake. Yesterday, SCOTUS heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case brought by a fundamentalist Colorado bakery owner Jack Phillips, who has declared he is a “cake artist” and he can’t be compelled to use his art to convey a message he doesn’t agree with—namely, same-sex marriage. He says it violates his First Amendment rights. A gay couple, David Mullins and Charlie Craig, attempted to order a cake from Phillips and were turned down. The state of Colorado told Phillips he couldn’t refuse service to a couple based on his opposition to same-sex marriage, so he sued.

Lower courts agreed with Colorado, and that likely should have been the end of it, as many courts have found that there’s no religious exemption by which you can refuse to bake a cake, or take a wedding photo, or make a floral arrangement, just because you hate LGBTQ people and/or same-sex marriage. But that was before the 2016 election, before Justice Neil Gorsuch, who is making very clear he doesn’t like LGBTQ individuals and doesn’t believe that Obergefell v. Hodges, the SCOTUS decision affirming same-sex marriage, means that same-sex couples enjoy all the rights their straight counterparts do. And that was also before we had Attorney General Jeff Sessions running the Department of Justice and proving very happy to rescind almost every pro-LGBTQ action he can. Where Obama’s DOJ had consistently backed same-sex marriage and other civil-rights issues, under Trump and Sessions things have flipped so much that the DOJ filed a brief in this case in favor of the baker’s right to discriminate.

Because the Cakeshop is the petitioner here, its attorney went first at oral argument. Phillips and his Cakeshop are represented by Kristen Waggoner of the Alliance Defending Freedom (ADF), an anti-LGBTQ organization that has brought a number of these cases. Justices Sonia Sotomayor and Ruth Bader Ginsburg immediately made clear that the framing of the case is ludicrous. Perhaps realizing that an outright refusal to serve same-sex couples or LGBTQ individuals at all might be a bridge too far, even for this court, Waggoner has tried to draw a distinction: Phillips shouldn’t have to bake the gay men a cake, because that requires him to use his cake artistry in favor of a message he doesn’t approve of, and that’s a First Amendment violation, but the bakery can’t just refuse service entirely, so that same gay couple could buy a cake off the shelf.

This ignores, of course, that if Phillips is an artist, his artistry already went into that off-the-shelf cake as well, presumably. And Justice Kennedy gives us some hope by seeming to agree that this distinction seems absurd. However, things get even more tangled—and grimmer—when Waggoner begins to explain all the artists that contribute their efforts to a wedding: the person that designs the flowers, the individual who creates the invitation, the venue itself. All those entities, under the view of Jack Phillips, fundamentalists everywhere, the Trump DOJ, and at least four members of the Court, would have the right to refuse all kinds of services to same-sex couples—and perhaps even LGBTQ individuals.

Somehow, Waggoner tries to say that hairstylists don’t fit in this category because they’re not artistic enough so they can be forced to do hair for the lesbian wedding, apparently. Architects, also, don’t enjoy the religious “protections” that Waggoner wants to impose, because that isn’t artistry, because buildings are functional, so the architect couldn’t object to having their building used by a same-sex couple for a wedding service, but, perversely, the people that run the venue at that same building could refuse.

It’s really at this point that you can see how incoherent a doctrine this would be. Which “artists” get to say that whatever they create is so artistic that being forced to let a queer person or a same-sex couple buy it will violate their free speech rights? Yes to bakers, no to hairdressers. Yes to florists, no to sandwich artists. The only way this really gets solved—and here’s what this is really about—is just to let anyone discriminate against LGBTQ people for any reason, rather than drawing lines about “artistry.” And that’s really what the ADF and the Cakeshop want. There’s a feeble and somewhat insincere attempt to explain that a ruling in favor of Cakeshop doesn’t create a way for people to discriminate against interracial or interreligious couples, but there’s just no way it doesn’t. As long as you say your belief is sincere, you’d get to bar people from full participation in the public sphere.

It really isn’t until the lawyer for the gay couple gets up to talk that you realize how breathtaking the discrimination was, and how weaselly Phillips, his lawyer, and the government, are being now by not really explaining it. This isn’t about refusing to supply a pro-gay message on the cake. Phillips refused to work with Craig and Mullins right from the start. He refused to make them a cake, period. It wasn’t that he refused to write a specific pro-gay message or draw a million rainbows, both of which are arguably closer to speech than baking a cake. He refused simply because of who the couple was.

Now, it’s no surprise that everything out of the mouths of Justices Roberts, Alito, and Gorsuch make it clear that they’ll side with the baker. Gorsuch even signals that he’s mad Colorado made Phillips provide training to his staff about how not to discriminate, because doing so violated Phillips’s heartfelt and sincere religious wish to discriminate against LGBTQ people. And Justice Thomas doesn’t have to say a thing—everyone knows he’ll come down in favor of letting religion trump rights.

Kennedy—who, let’s face it, is the one we’re all watching—really gets going when the attorney representing Colorado steps up to defend the state for holding all businesses within it to account: If you want to sell things to the public, you don’t get to choose who you sell those things to, even if their lifestyle makes you sad. This is also where Kennedy makes everyone’s heart sink by immediately jumping to saying that Colorado may have been exhibiting a hostility to religion by saying Phillips can’t deny his cake-baking artistry to same-sex couples. He also says that Colorado hasn’t been tolerant or respectful of Phillips’ religious beliefs.

Here’s the thing: We don’t need to be tolerant of views that say same-sex couples are less deserving than their heterosexual counterparts. This isn’t about the cake, just as it wasn’t about the hotel or the lunch counter 50-plus years ago. It’s about a bigoted group of people trying to ensure that they get to impose their bigotry on the rest of us. America was founded, in theoretical part, on the idea that no one is free to deny the full enjoyment and rights of the public sphere based on your religion. It took us many, many years to get to that same point about race. Now, it’s time to recognize the demand and the promise of Obergefell and get to that point about LGBTQ people, to treat them as a protected class that can’t be discriminated against based on the whims of conservative religious adherents. Let’s hope Justice Kennedy agrees. He’s our only hope.