Six Quick Notes on the Cakeshop Oral Argument

By David Boyle

Dec 7, 2017

After the oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, some quick notes:

1) Petitioners overemphasized "free speech" once again, so that Chief Justice John Roberts had to save them by mentioning the free-exercise-of-religion issue. (There were sporadic mentions of Free Ex before, but nothing notable.) When Jo. Ro has to bail you out, maybe you're not doing the best job. (See one's two previous posts, If "Employment Division v. Smith" Isn't Loosened, Jack Phillips Might Be Bound for Failureand Phillips' Reply Brief Bakes in Admission that Interracial Marriages Could Be Refused Cakes, re Petitioners' using "free speech" as a panacea, when the Free Ex claim might actually work better.)

2) About that religion thing: as Andrew Koppelman has noted, is Justice Anthony Kennedy really going to send the issue back to the CCRC because Kennedy thought one or two commission members dissed Jack Phillips' religion too much, seeing that the same result will probably happen in the end anyway after the remand? What's the point??

3) Justice Sonia Sotomayor may have seemed to "hog" Petitioners' counsel's rebuttal time at the end, but So. So (or So. Soto, if you will) did bring up an important point, the corporate side of things. After all, it's not just Phillips but his cakeshop as well. What if it's a big corporation doing the refusal of service to same-sex weddings in the future? Kosher, or no??

4) Speaking of corporations, what happened to RFRA? Did anyone even mention Colorado's lack of a RFRA? Might such lack be important, maybe, since Hobby Lobby was wrapped around a RFRA?

5) Various media say how the Court is split, agonized, etc. about what to do. Perhaps they really have to read their briefs again, and various Internet posts on the case, to find some ideas for a reasonable compromise that upholds both sides' dignity. Wherever those ideas might be lurking.

6) Finally: to everyone's surprise (??), Justice Clarence Thomas spoke somewhat less than Justice Sotomayor did. Perhaps he was just exercising his free speech rights again, or freely exercising his right not to mention any delicate topics offending his religious conscience... But at least those who do not speak, do not have to grope for words, as we might imagine Roy Moore might "grope for words" if he were elevated to become a Member of the Court (!!) ...Or would he be groping for something else??