Phillips' Reply Brief Bakes in Admission that Interracial Marriages Could Be Refused Cakes

Following one's essay "If 'Employment Division v. Smith' Isn't Loosened, Jack Phillips Might Be Bound for Failure" on this blog, one did not expect to write again about Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission for a while, if ever. However, Petitioners' reply brief of November 22 risks being such a "train wreck", one is tempted to say, that one writes this present new post for public entertainment/edification. In particular, the cakers' new brief makes the gobsmacking admission that under Petitioners' theory of the case, businesses might be able to discriminate by race if weddings are involved. This may nail the coffin lid shut on Phillips' case.

But first, speaking of "public entertainment", a logistical note on the fabulous new way that the present author was able to read the scary reply brief in the first place:

I. A New Kid on the Block in the "Legal Entertainment" Field: The Supreme Co.....ntent Provider

In the legal field, media section, there is a massive entertainment/news empire known as... SCOTUSblog. This storied weblog has as its primary "content provider", a little-known government entity called the... Supreme Court of the United States. (This makes SCOTUSblog sort of an "HBO" to the nine black-robed "underpaid show writers", forever-scrivening content-providers, who sit on the Court.)

Anyway, this obscure "Supreme Court" entity is now fighting back against SCOTUSblog's media mega-might by providing its own free entertainment. For example, the present author was able to access Phillips' reply brief directly from the Court docket page, which was not possible back in the old days. --Not to mention the word count and statement of service! What else could a litigation addict want? (One usually had to go to SCOTUSblog, or other lawtainment moguls such as the American Bar Association site, to get links to briefs.)

But who is going to get bigger market share among people looking for online case-information satisfaction? S-blog or S-Court?? Are we going to have a cutthroat "battle of the entertainment platforms"? Stay tuned! Same Bat-, uh, Court-time, same Court-channel!!

II. Phillips' Reply Brief Astoundingly Notes that Interracial Marriages Might Be Denied Wedding Cakes...Because of "Compelled Speech" Issues?!

Somewhat more seriously--actually, much more seriously--: Jack Phillips' reply brief features, on page 15,

Respondents repeatedly invoke hypothetical cake artists who object to designing wedding cakes that celebrate interracial marriages. The record in a case like that would likely reveal that the cake artist engages in broader class-based discrimination against certain races. But assuming such a cake artist objects only to the message of those wedding cakes and otherwise serves people of all races equally, the compelled-speech doctrine would apply. The government, however, could potentially satisfy strict scrutiny because “racial bias implicates unique historical, constitutional, and institutional concerns.” Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 868 (2017); see also Anderson Am. Br. 15-22.

Id. This is an astounding, explicit admission that under Petitioners' "compelled speech" theory of the case, bakers could quite possibly discriminate against interracial marriages and refuse to sell them a wedding cake, legally. This admission may be just what Respondents may need to nail shut the coffin of Petitioners' case.

After all, another way to put what Petitioners said supra is,

Respondents fear that denying cake service to interracial couples could occur-- and they're right!

Petitioners do evoke Peña-Rodriguez, supra, to say the "government, however, could potentially satisfy strict scrutiny". But "could potentially" is pretty weak tea. What if you were a fledgling parachutist, and your parachute instructor said, "Your parachute could potentially work"? Would you jump?

So, will the Court jump to accept Petitioners' "compelled speech" wedding-cake theory, which presumes, seemingly, that bakers could discriminate against interracial weddings unless the government, just maybe ("could potentially"), possibly, could jump through all the hoops of strict scrutiny? ...Will the Court really jump that high for Phillips and his cakeshop?

If Petitioners had used Peña-Rodriguez as the present author did, "but Peña-Rodriguez alone nicely supports the idea that one could completely ban race discrimination by business", one's Br. at 25, see also "it seems that businesses should have some way to opt outof particular actions that seem abominable to them, except for absolute no-go zones like race", id. at 31-32, and "Some refusal of service is so odious that society cannot tolerate it; most notably, refusal of service because of race or color", id. at 37: something like that would have been much stronger than Petitioners' flaccid "the compelled-speech doctrine would apply. The government, however, could potentially satisfy strict scrutiny . . . ." Petitioners may have good intentions, but their phrasing is atrocious.

(Petitioners do cite, supra, an amicus brief, of which pages 15-22 do criticize racism and say, inter alia, "Combatting racism through a nondiscrimination statute that is applied without exemptions may be the least restrictive means to achieving compelling interests", id. However, not only is that iffy, using the verb "may"; but in its particular formulation, it could be used to get rid of affirmative action, thus likely hurting minority interests. No mainstream civil rights groups signed on to that amicus brief. But the NAACP Legal Defense and Educational Fund submitted a brief for Respondents.

And, the Court may pay more attention to Petitioners' new assertion, "the compelled-speech doctrine would apply. The government, however, could potentially satisfy strict scrutiny . . . .", rather than a supporting amicus brief from several months ago.)

A final word is that under Petitioners' theories, Charles Manson ("RIP?"), a deranged cult leader, murderer, and prophet of race war, might be allowed legally to discriminate against Della Reese (RIP--dead the same day as Manson!), famed African-American actress, if she somehow ordered a wedding cake from the Manson Family. (An unlikely scenario, true; but, just "roll with the hypo", as they say in law school.) So, instead of being "touched by an angel", Reese would be discriminated against by a devil, so to speak. Petitioners may want to change, or clarify, their theories as soon as possible.

III. Phillips' Lawyers' Strategy Is Unbalanced and Rides to Death the Weaker Horse of "Free Speech" Claims

And that is not the only problem with the reply brief. The 27-page brief also massively overconcentrates on Petitioners' free-speech claim, leaving only about 2 and 1/2 pages, pp. 23-25, as a dedicated section for discussing specifically the Free Exercise claim. This is exceptionally bizarre, given that the idea of "balance" would support giving roughly 13 pages of the brief (minus any pages for table of authorities, etc.) to free speech, and 13 pages to free exercise of religion. Why spend less than a tenth of the brief on one of the two claims?

What makes it even worse is that the Solicitor General's office already supported the free-speech claim, using basically its entire amicus brief to discuss free speech, not the Free Exercise claim. So Petitioners not only doubled down on free speech with their reply brief, they are sort of tripling down, and riding a horse to exhaustion or death.

Lastly, the free-speech claim is questionable in the first place, as this author has discussed elsewhere. See, e.g., Dale Carpenter and Eugene Volokh in their brief for Respondents,

A chef, however brilliant, cannot claim a Free Speech Clause right not to serve certain people at his restaurant, even if his dishes look stunning. The same is true for bakers, even ones who create beautiful cakes for use at weddings. . . .

Id. at 5. Carpenter and Volokh have at least a highly plausible point, even if not everyone agrees. So, while Petitioners might be stupid to abandon completely their Free Speech Clause claim--after all, it just might work?--, they might not want to put too much stock in it, either. And they are putting the vast majority of their eggs into what may be the weaker basket, i.e., the "free speech" basket, instead of the Free Exercise basket. Is this really prudent?

Conclusion: Can Phillips' Lawyers Correct Course Before the "Highway to Hell"?

This author makes no predictions here: but Petitioners' lawyers' admission of possible denial of business service to interracial weddings, plus the lopsided emphasis on "free speech" to the near-exclusion of "Free Exercise", does not seem to be doing Petitioners any favors. The reply brief almost looks like it was written by Roy Moore or someone similar.

As per the recently-deceased Malcolm Young (RIP) of "Australia's finest", AC/DC, Phillips' case may be on the "Highway to Hell" (whether standard version or funk version). Can Petitioners find some legal "Chesley Sullenberger" to correct course during the oral argument, before total disaster ensues?

And there is room for correction. A half-hour of oral argument can work wonders, if one is well-prepared and thoughtfully plans. Following are some ways that Petitioners might want to clear up their self-inflicted problems, during their oral argument on December 5:

1) As for refusal of businesses to serve interracial weddings (or other expressive events with interracial clientele), Phillips' lawyers may want to assert that such refusal would be flatly impossible and illegal, whether under Peña-Rodriguez or any other provision(s);

2) Petitioners might want to give equal time to the free-speech argument and the Free Exercise one, with about 15 minutes of oral argument for each. Say, 10 minutes on free speech from the Solicitor General, and 5 minutes on free speech and 15 minutes on Free Exercise from Phillips' lawyers. This would help the impression that Petitioners still take both of their claims seriously.

Not all of the reply brief is bad, by the way. For example, the idea of "jail time or financial ruin" for dissenting bakers (or other businesspeople) appears on page 18, and it may be wise for Petitioners to mention that during the oral argument, in hopes that the Court will at least abate some of Phillips' punishment, or punishment for similarly-situated persons. (Prison, or immense fines, seem a little excessive as punishment for just not making someone a wedding cake.)

Much other advice this author might give Petitioners, has already been said in this author's previous posts. But if Petitioners' lawyers prefer to go their own way (obsessing on "free speech" alone, etc.), rather than something different like rocking the O'Connor concurrence in Employment Division v. Smith, 494 U.S. 872 (1990)--which could get the Court to relax Smith a little--, that is up to them.

As a last note: this Thanksgiving week, we are grateful for the diversity and prosperity of the Nation, and for believers, also grateful to the Creator of these things. But Jesus may not help Petitioners' lawyers if they do not help themselves. ...If the reply brief's theories are correct, then, re the Peanuts TV special A Charlie Brown Thanksgiving, instead of Charlie Brown joyfully slapping palms with African-American character Franklin, id., one could instead imagine Charlie Brown (at least if he is turning evil), slapping Franklin in the head and saying, "I'm never going to cater your wedding! and that's legal!" Good grief!!

So Petitioners' lawyers need to make some serious changes to their strategy, it seems. If not, they may risk delivering a slap in the face not only to their own clients, but also to any amicae/i who spent time trying to be helpful to Jack Phillips' rights. "Good grief", indeed. It would really take the cake for a baker to get flambéed by the poor tactical choices of his own lawyers...