LGBTQ rights just had a horrible day in the Supreme Court

There are almost certainly five votes for the anti-gay cake baker Jack Phillips.


There’s no way to sugarcoat the oral arguments in Masterpiece Cakeshop v. Civil Rights Commission, a landmark Supreme Court case asking whether a religious baker who objects to same-sex marriages is allowed to defy Colorado’s anti-discrimination law. Justice Anthony Kennedy, the key swing vote and the only conservative on the Court who has shown much sympathy for LGBTQ rights, appears almost certain to side with Jack Phillips, the baker in this case.

Though there is a chance that Kennedy could side with Phillips on narrow grounds, Masterpiece Cakeshop could potentially give religious conservatives sweeping power to engage in discrimination.

Phillips appears likely to win despite fairly inept lawyering by his attorney, the Alliance Defending Freedom’s Kristen Waggoner. For most of her time at the podium, Waggoner seemed to tie herself in knots — unable to explain which individuals should be exempt from civil rights laws and which ones should not. At one point, she even whiffed at a softball pitched to her by staunchly conservative Justice Samuel Alito.

In fact, Waggoner dug herself in so deep a hole that she may have inadvertently saved the LGBTQ community from a sweeping loss that would cut much deeper into their rights. Though Kennedy appeared angered by the state officials who enforce Colorado’s anti-discrimination law, he also at one point seemed to cast about for a way to decide this case that could have minimal implications for future cases.


A crucial issue in Masterpiece Cakeshop is how to limit its holding. Should all people with religious objections to civil rights laws be allowed to ignore them? Or perhaps simply people who engage in creative work? Waggoner’s answer to this question is that Mr. Phillips makes creative works of art — albeit in cake form — and that his wedding cakes necessarily express the message that the event where that cake is served celebrates a valid marriage.

Her client, Waggoner argued, cannot be required to express a message he does not wish to express under the First Amendment’s free speech clause. His cake, she claims, is a form of speech. But other individuals engaged in other lines of work may not implicate the same First Amendment concerns.

Not long after Waggoner began her argument, however, the Court’s liberal members began peppering her with questions about other kinds of artistic work that may be included in a wedding celebration. Justice Ruth Bader Ginsburg asked if a florist can refuse to provide flowers to a same sex wedding (Waggoner said yes, but only if the florist provides custom arrangements). Justice Elena Kagan asked about a jeweler (Waggoner said yes). What about a hairstylist (no), or a makeup artist (no)?

Kagan pounced after Waggoner excluded hairstylists and makeup artists from her list of protected artisans. A makeup artist, Kagan noted, “may feel exactly as your client feels” — that her makeup is itself part of the message a wedding conveys. When Waggoner tried to explain her distinction by claiming that makeup “is not speech,” Kagan clapped back that “some people will say that about cakes.”

As the argument wore on, Waggoner found herself deeper and deeper in this hole. At one point, Waggoner claimed that a chef who cooks a beautiful and artistic meal is not engaged in speech, even though a baker is. At another, after Justice Alito asked about architecture in an apparent attempt to bail Waggoner out, Waggoner inexplicably claimed that architecture is not expressive.


Waggoner likewise stumbled over questions about what kind of discrimination is permissible. Though her client seeks the right to discriminate on the basis of sexual orientation, Waggoner suggested that a baker with racist views would still have to bake a cake for an interracial wedding. She also claimed that a baker could not discriminate against a disabled couple because such discrimination “would be based on who the person not the message” — but the same thing could also be said about discrimination against a same-sex couple.

Nor did Solicitor General Noel Francisco, who also argued in Phillips’ favor, do much to bail Waggoner out. Indeed, Francisco even claimed that discrimination on the basis of gender, national origin, or religion could all be permissible — only race discrimination enjoys protection from people like Mr. Phillips. Indeed, Francisco’s arguments, while more poised, appeared to be even more radical than Ms. Waggoner’s. They seemed to do little to sway wavering justices.

Things quickly turned south, however, not long after Colorado Solicitor General Frederick Yarger stepped up to the podium to defend Colorado’s anti-discrimination law. Up until this point, everyone in the courtroom treated the case as a free speech case. Waggoner and Francisco’s arguments rested largely on claims that Phillips was being forced to express a view that he does not hold. The question of whether Phillips’ right to practice his faith was somehow implicated largely went unmentioned.

But this question sure mattered to Kennedy. Pointing to a state commissioner who claimed that the idea that religion could be wielded to justify discrimination is “despicable,” Kennedy all but demanded that Yarger disavow that statement. This one commissioner’s statement, Kennedy suggested, displayed such hostility to religion that it could justify invalidating the entire ruling against Mr. Phillips.

Chief Justice Roberts and Neil Gorsuch, who occupies the seat that Senate Republicans held open for a year until Donald Trump could fill it, quickly piled on. Gorsuch, for his part, claimed that a second commissioner showed improper bias when they said that a person with religious beliefs that conflict with a civil rights laws may have to compromise those beliefs.


And then things got even worse for Colorado and for supporters of anti-discrimination laws. “Tolerance is essential in a free society,” Kennedy lectured Yarger. The state, Kennedy continued, has not been particularly tolerant towards Mr. Phillips. “There are other shops,” Kennedy concluded, suggesting that same-sex couples should be forced to go door to door to other bakeries until they find one willing to serve them.

Kennedy appears to be floating two entirely separate rationales for a decision in favor of Mr. Phillips here.

One could potentially be quite narrow, invalidating this particular ruling due to poorly worded statements by one or two state commissioners, but leaving intact Colorado and other states’ ability to enforce their civil rights laws so long as their watch their tongues.

The other rationale, meanwhile, could be extraordinarily sweeping — the equivalent of telling a black person in the Jim Crow South that it was fine if the Woolworth’s lunch counter won’t serve them, so long as there “are other shops” up the road that will sell African Americans lunch.

Kennedy may also need to navigate the maze Waggoner got lost in during her time at the podium — are florists like bakers? how about hairstylists? But make no mistake, Kennedy appeared almost certain to side with Mr. Phillips. The biggest question is how he will do so.

Masterpiece Cakeshop is, at least in Kennedy’s mind, a case about religious liberty. So it’s worth considering another case that the Court decided on Monday.

Late Monday afternoon, the Supreme Court allowed the latest version of Trump’s Muslim Ban to take effect. Though that decision is temporary and might eventually be reconsidered, it is a likely sign that several fig leafs Trump attached to the latest version of his ban are enough to alleviate whatever convinced a majority of the Court to restrict earlier versions of the ban.

On Monday, the Court effectively allowed the President of the United States to engage in discrimination against Muslims — using a plan that Trump laid out while he was still a candidate. Then, on Tuesday, the Court appeared poised to hold that Christian identity can provide sweeping immunity from the rule of law.

Not long after Trump took office, anti-authoritarians and other liberal democrats began looking to the courts to save the country from Trump’s worst instincts. Often, they’ve pointed to a handful of court decisions against Trump as proof that this strategy can work. But this week stands as a warning. The courts cannot necessarily be counted on to safeguard us.