Masterpiece Cakeshop, et al., v. Colorado Civil Rights Commission. No. 16-111 (S.Ct.) Oral argument held December 5, 2017.

With measured alliteration, Justice Anthony Kennedy exposed the heart of the matter in the case heard today.  When all is stripped bare, at its core this case concerns how people of differing traits and persuasions may accommodate each other.

Neither side could be seen as having gotten any nod of agreement from the bench today.  Petitioners’ counsel was grilled over and over:  what is speech? what is expression? what is art? The inability to draw any circumference around speech deserving of protection, and conduct which is not, perplexed the panel.  Similarly, the question of whether there is something different about respondents as opposed to other protected classes was explored.  Most importantly, the question that filled the room:  how can exceptions be permitted without diluting decades of civil rights legislation.  The centrality of public accommodations law to the pursuit of equality was emphasized by Justice Sotomayor.    While our society is not as it once was, the attainment of measures of equality did not happen on its own.

Respondent Colorado Commission Against Discrimination’s counsel received no less rigorous examination, some of which focused on perceived difficulties in the record and with respondents’ brief.  Contempt for religion appears to have been shown by a vocal state commissioner who stated that religion may be a used as a device of discrimination.  This view may be indicative of bias.  Justice Alito characterized as “disturbing”  the apparent failure to accept as true petitioners’ version of the facts, as ought to have occurred on summary judgment.

Counsel for the individual respondents urged that any distinction between race and sexual orientation be set aside, as to create a hierarchy among protections accorded protected classes would likely cause gay, lesbian, and transgender individuals to perceive their status as second class.

The great impracticability of the case was decried by Justice Breyer, who stated that as the United States has had decades of legislation intended to foster equal treatment for all, one wonders whether this issues presented n this case would be better served by legislative, rather than judicial, redress.  The Court has been asked to fashion a way for those persons of conscience whose religion compels noncompliance with the public accommodations law to be able to do so.  Justice Breyer offered that he knew of no way that the Court could do so, as a practical matter or as an institution.

Whatever the outcome in this matter, it cannot be said that the issues have not commanded the full and diligent attention of the court.

The transcript of today’s proceedings may be found at the link below.

16-111 Oral Argument 12 04 2017 Masterpiece Cakeshop