An expert explains the potentially far-reaching implications of the court's most prominent case this term.
Left: cake. Right: Justice Anthony Kennedy. Photos via Getty
After the Supreme Court made gay marriage the law of the land, conservative culture warriors were forced to pick a new battle. Mostly they've focused on legislation as opposed to litigation, like anti-trans bathroom bills and bans on same-sex adoption. But they've also found a new cause to rally around in the form of Jack Phillips, the Colorado baker who famously refused to make a wedding cake for Charlie Craig and David Mullins in 2012.
The state’s civil rights commission and a state appeals court said that the baker violated the Colorado Anti-Discrimination Act by refusing to do for a gay couple what he would for a straight one. But Phillips decided to kick his case up to the Supreme Court, which complicated matters considerably, given that the Civil Rights Act of 1964 doesn't specifically protect people based on sexual orientation or marital status. The justices are presumably poised to decide whether the Colorado statute that prevents businesses from discriminating on the basis of sexual orientation is unconstitutional because it violates Phillip's First Amendment rights. It's a complicated case that hinges on whether a wedding cake is "speech," among other unintuitive questions, and is being watched closely by both LGBTQ and religious rights groups.
On Tuesday, lawyers for the state of Colorado and a Christian group called the Alliance Defending Freedom presented oral arguments in Masterpiece Cake Shop vs. Colorado Civil Rights Commission, which is poised to be the most explosive case taken on this term. (A ruling is expected by June.) I caught up with Amanda Hollis-Brusky, a politics professor at Pomona College who studies the Christian legal movement and was able to tell me about the group defending the baker, the stakes of the case, and how Masterpiece is likely to shake out. Here's what we talked about.
VICE: There's a stunning array of conservative legal organizations that could have taken this case on. What is the Alliance Defending Freedom, and how did it get dibs?
Amanda Hollis-Brusky: ADF was originally called Alliance Defense Fund and started to raise money for other public interest law firms. The idea was that they would have a funding conglomerate that would raise money to finance litigation projects and campaigns. In the course of doing that, they realized there was infighting [among other groups], so they developed their own litigation fund and gave smaller grants to other public interest law firms. Once they did that, Alan Sears, who was the president at the time and had a lot of connections to a lot of well-funded conservative Christian interests, was able to draw a lot of funding to Alliance Defense Fund, which became Alliance Defending Freedom.
They create their own pipeline for attorneys. They have the Blackstone Legal Fellowship, which selects very highly competitive Christian conservative law students around the country, and brings them to Scottsdale, Arizona, for a training seminar, and then an internship. Once they have that kind of experience, whatever they go out and do, a lot of them remain as allied attorneys because they have a connection to the organization. They're very savvy and good at getting their talking heads on television to help build their brand.
So what kind of secular cases have they taken on in the past? Any lateral cases they worked on that might set them up for success in Masterpiece Cakeshop?
Groups like ADF started participating in secular speech cases during the 90s and 2000s so they could build up that precedent so it was ready to be utilized for their own purposes. If you were to look at this as a blank slate, you would think this was a religious liberty case. But the precedent with religious liberty has a pretty low bar for the state to regulate and a particularly high bar for someone to claim an exemption, particularly at the state level. If this baker wanted to claim a religious exemption at the state level under contemporary constitutional precedent, he would have failed. These religious organizations are now latching on to the speech precedent because in the last ten to 15 years it's gotten quite robust. ADF did a really good job at making sure that precedent was entrenched for speech so when they wanted it to apply for the speech that benefits their movement and their constituencies, it was there and available.
I can only speculate that it presents a unique set of facts. Courts could plausibly believe that baking a cake is artistic expression, whereas somebody refusing to serve a hamburger to a black person is not. The baker's lawyer is trying to advance the argument that anything that has those blended elements is expressive speech. This would really explode the First Amendment. I read the oral arguments yesterday and just couldn't get over it. This is a case of incredible consequence—one of those critical juncture movements where if the court accepts this argument, we're going to see plaintiffs left, right, and center testing what is and what isn't expressive speech. Or the extent to which businesses can exempt themselves from otherwise generally applicable regulations based on what they feel is coerced speech. So this is a huge case with really big ramifications, and from my understanding, there's something about a cake and a wedding cake that works well with the arguments they're trying to advance. It's part artistic creation, and part utilitarian.
I'm surprised to hear you say this is such a big deal. It seems like the ruling could be in favor of the baker and still be pretty narrow—a custom creation for a wedding that features words and symbols really only could apply to a few things other than a cake, no?
This strikes me to akin to the argument in the 1970s case that first established that money and campaign contributions were speech. That ruling was somewhat narrow, that [only] some campaign contributions could be construed as expressive speech, but because that precedent existed, we saw a series of cases later on that stretched that ruling to apply to corporations and unions. The principals have the tendencies to expand themselves, and they'll expand themselves to their logical end.
What's your forecast on what might ultimately happen given yesterday's oral arguments and the fact that Justice Anthony Kennedy's questions seemed sympathetic to the baker? Does it seem like the baker will win?
I think it's highly likely, actually. Anthony Kennedy does as he will do. He's very conscious of his place in history as the swing vote. He's trying to appease a lot of different audiences. He's a fiscal conservative, and he's a states' rights conservative, which is big. He could make this about Colorado being able to repeal the statute that gives additional protections to certain groups. The idea is that unless the Constitution specifically prohibits something, you should defer to the states.
There are ways that this appeals to Kennedy's liberal side, but he did note there was some animus on the behalf of some Colorado commissioners toward the baker, and if that animus is enough to think that some people are not getting a fair shake in the political process, then he might see his role as stepping in and protecting these bakers. Regardless, I do think we're at one of these critical junctures where a rule could be narrowly tailored for this case, but that precedent gets picked up and used by a group, and then a future court expands it just a little, and so on and so on. That's how you build an entire area of Supreme Court jurisprudence that didn't exist before. If you claim a precedent, even if it's a small win, you can expand on it. And that would be a huge victory for the conservative Christian legal movement, because it then opens up an entire area for litigation that was foreclosed before.
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