As a student of appellate advocacy, I love to argue, attend, watch, and listen to oral arguments because I am convinced they do in fact shape the outcome of the ultimate decision.  The Supreme Court heard oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission on December 5, 2017.  The argument lasted for more than an hour and consumed 108 pages of transcribed cut and thrust.

In my post of  November 9, 2017, I predicted that SCOTUS would somehow “ice over” the cake as art issue and affirm the ruling of the Colorado Civil Rights Commission which ruled that baker Jake Phillips’s refusal on religious grounds to create a specialty cake for a same sex couples’s forthcoming marriage violated Colorado’s anti-discrimination law.

The argument, with sharp questions coming from both liberal and conservative justices, I believe, proves the accuracy of my prediction.  Phillips’s lawyer was asked to draw fine distinctions between, for example, a baker, a florist, a make-up artist, and a chef.  But I thought the most telling question came from Justice Alito, followed by Justice Breyer.  And it was a question central to the warning I give to all of my colleagues who are preparing for oral argument: Be Wary Of The Concessions You Are Asked To Make. Because Justice Alito’s question with its implicit request for a concession is so telling, I quote it in full below.

“Justice Alito: What would you say about an architectural design; is that entitled to – – not entitled to First Amendment protection because one might say that the primary purpose of the design of a building is to create a place where people can live or work?

Ms. Waggoner: Precisely.  In the context of an architect, generally that would not be protected because buildings are functionable, not communicative.

Justice Alito: You mean an architectural design is not protected?

Ms. Waggoner:  No. Architect – – generally speaking, architectural would not be protected.

Justice Breyer: So in other words, Mies [van der Rohe, a famous modernist architect] or Michelangelo or someone is not protected when he creates the Laurentian steps, but this cake baker is protected when he creates the cake without any message on it for a wedding?  Now, that – – that really does baffle me, I have to say… “[bracketed reference, mine].”

With one question – – and with the concession made, it seems to me that Phillips’s lawyer revealed, albeit unintentionally, that his client’s refusal to bake a specialty cake for a same sex couple had to do with the identity of the same sex couple – – and not the artistry or the message in the cake he was asked to create.  In other words, having conceded that an architect under Colorado’s law could not refuse to create a design for a same sex couple, the credibility of the argument collapsed like a cake for want of the proper amount of yeast, especially when the Court baked Michelangelo and Mies van der Rohe into the cleverly designed query.

In sum, having read all of the briefs and having studied the argument, I do not think SCOTUS is going to use this controversy to decide what constitutes a protected message under the First Amendment or indeed whether a cake may qualify as art.

And that’s it for this This and That – – and for 2017.  Best wishes for a Joyous Holiday Season and a Happy & Healthy New Year.