Masterpiece Cakeshop day: Did justices ask what this wedding cake was supposed to look like?

It's a wedding day, sort of, at the U.S. Supreme Court, with legions of activists and journalists (and folks who are both) lining up to hear oral arguments in the much-discussed case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

One of the main challenges facing journalists is this: How should they frame the issues in this First Amendment case? In other words, is this a religious liberty (no "scare quotes," please) case about a religious minority, an artistic expression case or, as the title implies, a case that is essentially about civil rights?

Based on what I have been reading, the legal team for bakery owner Jack Phillips is planning -- preaching to Justice Anthony Kennedy, of course -- to focus on issues of artistic expression, as much or more than on religious liberty.

With that in mind, readers will want to pay attention to two specific issues in mainstream news coverage of the oral arguments at the high court.

First, does the coverage mention that Colorado officials have, on three occasions, declined to force pro-gay bakers to provide Christian or conservative customers with cakes containing creative content that would violate liberal political and religious beliefs on sex and marriage. In other words, Colorado recognized the First Amendment rights of those cake artists.

Second, will the justices strive to find out precisely what kind of cake Charlie Craig and Dave Mullins were seeking when they sought the services of a baker famous for his custom-designed and intricate cake creations.

Why ask that second question? Consider this crucial passage in the National Public Radio advance story, which ran online under this headline: "A Supreme Court Clash Between Artistry And The Rights Of Gay Couples." The key voice here is that of Kristen Waggoner, of Alliance Defending Freedom:

"The First Amendment protects the right of all Americans to decide what they will express and when they will remain silent," she continues. "It's fundamentally different than saying to someone, 'I will not serve you just because of who you are.'" This case, she maintains, "is about the message."
All agree there was no discussion of any writing on the cake or its design. The message, Waggoner contends, is the fact that this is a cake announcing a same-sex wedding.
Even if Mullins and Craig wanted a simple three-tiered white cake without writing, the First Amendment protects Jack Phillips' artistic and religious right not to create it, she argues.
The state of Colorado disagrees, backed by leading First Amendment lawyers who argue the case is not about freedom of speech.

If you read other reports, it's clear that Phillips believes that he was being asked to create a custom cake like the other wedding cakes that consistently drew customers to his shop. That would automatically include creative content.

So why were these details not discussed on that pivotal day? Apparently because the conflict with Craig and Mullins developed so quickly that there was no time to discuss design. Phillips offered them their choice of ordinary wedding cakes and they were offended and left the shop. Here's his point of view:

A: ... Our whole interaction was 20 seconds, no more than 30 seconds of conversation. But one of them [Craig] also came with his mom, and she was sitting at a table … I’d say 12, 15 feet away. She couldn’t hear what was going on, and she called me the next day and said, ‘So what was all this about?’ And I was able to explain clearly to her so she could relay it to them.
Q: Was she civil?
A: Yeah, she was. It was maybe a five-minute conversation. And she was cordial. ...
Q:  The two men used profanity?
A: Yeah, the f-bomb [laughs]. Something about ‘F you and your f-ing homophobic cake shop.’ I know ‘homophobic cake shop’ was in there, and the f-word.
Q: When you first explained, did you say, ‘I’m a Christian, and here’s why …?’
A: No, that didn’t come up until the conversation with the mother.

Again, that is the baker's point of view. The question is whether the court will push for additional content on that question.

Why does this matter? Because the artistic nature of these special cakes is at the heart of First Amendment arguments in the case (especially with Kennedy's history of concern about free speech and coerced speech).

Thus, journalists should listen carefully for discussion of this question: Was it reasonable for Phillips to assume that he was being asked to create one of his special, unique cakes?

A feature at The Federalist put it this way:

The likelihood that Phillips did anticipate this ... and based his refusal to do same-sex wedding cakes primarily on it, is made extraordinarily high by the additional, undisputed fact that he was willing to sell Craig and Mullins anything else in his shop, despite knowing the pair could easily use desserts they ordered for their reception. Nevertheless, the Colorado courts not only refused to consider, but actually denied discovery (forbade collecting information about) “the type of wedding cake Craig and Mullins intended to order.

Writing on the op-ed page at The New York Times, Robert P. George and Sherif Girgis of Princeton University also stressed the creative content question.

Our point is not that forcing people to sell a product or service for an event always compels them to endorse the event. It’s that forcing them to create speech celebrating the event does. And it’s well-established that First Amendment “speech” includes creative work (“artistic speech”) ranging from paintings to video games.
Unlike folding chairs or restaurant service, custom wedding cakes are full-fledged speech under the First Amendment. ... Mr. Phillips’s cakes are admired precisely for their aesthetic qualities, which reflect his ideas and sensibilities. A plaster sculpture of the same size and look would without question be protected.

Stay tuned. To say the least.

UPDATE: And we have the first Washington Post report -- click here.

The top of the New York Times piece seems to assume creative content:

WASHINGTON -- Justice Anthony M. Kennedy, who almost certainly holds the crucial vote in the case of a Colorado baker who refused to make a wedding cake for a gay couple, sent sharply contradictory messages when it was argued Tuesday at the Supreme Court.
He asked a lawyer for the Trump administration whether the baker, Jack Phillips, could put a sign in his window saying, “We don’t bake cakes for gay weddings.” The lawyer, Noel J. Francisco said yes, so long as the cakes were custom made.
Justice Kennedy looked troubled and said the administration’s position was an affront to the dignity of gay couples.
Later, though, Justice Kennedy said that a state civil rights commission that had ruled against the baker had “neither been tolerant nor respectful of Mr. Phillips’s religious beliefs.”


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