Last week, the Supreme Court heard a case argued between Masterpiece Cake Shop and the state of Colorado. The facts of the case are as simple as they could be — Jack Phillips, owner and main “cake artist” of Masterpiece Cake Shop refused to bake and decorate a cake that would be used in the celebration of a wedding between two men because, according to his religion, such a ceremony is not, in fact, a wedding. The couple sued the baker under Colorado’s anti discrimination laws which prohibit refusing a service to a customer based on sexual orientation and won at the state level. The baker, though, continued to argue that if the courts forced him to bake a cake to celebrate a wedding that violated his religious views, the state would be effectively compelling his speech, and thus violating his first amendment rights to free expression.
Court watchers and sources close to the justices know this one is going to be incredibly tricky because the court has set strong precedents in matters of both discrimination (especially against LGBTQ+ people) and matters of the first amendment.
The evidence for the first couldn’t be more obvious, although the overhaul of the justice system’s opinion on homosexual relations and relationships didn’t really hit its stride until about 2003. Overturning a previous ruling, the decision in Lawrence v Texas rendered the state’s anti-sodomy laws null and void. Since then, the LGBTQ+ movement has gained momentum and in a hurry. The Defense of Marriage Act was repealed, meaning that the federal government had to recognize any marriage that a state recognized, including those between two people of the same sex. Finally, in 2015, Obergefell v Hodges fully legalized marriage between any two people in the US.
However, by the same token, the courts have been wary to place heavy restrictions on “free expression” as protected by the first amendment, even in extremely ugly situations. The late great Justice Scalia, despite his personal opposition to flag burning, had to concede that every American’s right to free expression, including flag burning, was out of reach of the federal government’s jurisdiction. In Lee v Tam a more recent case, the courts ruled in favor of The Slants, an Asian-American rock band that was denied a copyright to their name because it was “potentially disparaging.” In the decision, the courts noted that, offensive as the band name may be, the US government has no place setting the line for what is and is not acceptable speech by way of who receives copyrights.
The man at the center of this whole case once again is Justice Anthony Kennedy, so often the swing vote on polarizing court cases that he’s been called the most powerful man in America. Although Kennedy has penned every majority decision that has proven a sweeping victory for gay rights, he’s also been a staunch defender of the first amendment — those close to Kennedy note that he was deeply influenced by George Orwell’s dystopian classic, 1984, as a child, and as such, cases that give the government power to limit what can or cannot be expressed make him squeamish — which certainly explains his vote in the infamous Citizens United case.
We’ll have to wait until springtime to hear how the chips fall, but this case will certainly determine a lot about the direction of the nation in a very real and tangible ways.