Today, Explained - You can't have your cake

Episode Date: June 4, 2018

Today the Supreme Court issued a decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, or as it’s colloquially known, the “gay cake” case. The 7-2 ruling sided with a Colorado baker who refused to bake a wedding cake for a gay couple. Most experts say the justices failed to make any rulings on same-sex rights versus religious freedoms, and The New York Times Magazine’s Emily Bazelon says that’s just the top layer. Learn more about your ad choices. Visit podcastchoices.com/adchoices

Vanderplug! Oh, that's me, Ramosforum. Guess who's back this week? I don't know. There's a couple to choose from. There's this and that and who and what and when. Wait a minute, wait a minute. But I'm here in the studio.

So I'll bet it's ZipRecruiter. ZipRecruiter.com slash explain the smartest way to hire. The smartest way to hire. The smartest way to hire. Emily Bazelon, writer for the New York Times Magazine. The Supreme Court issued a major decision today. I would very much appreciate your help explaining it. That's all. That's all I get. I just need to jump in.

No, what was the case? What was it called? Tell us a story of this case because this was one of the ones that got a ton of attention, right? Yes, it was decided 7-2. The case is called Masterpiece Cake Shop versus Colorado Civil Rights Commission. A baker named Jack Phillips, who owns his own store in Colorado, he refused to create a custom wedding cake for a gay couple who wanted the cake to get married. Jack Phillips said, I don't believe in gay marriage. It violates my religious beliefs. So I don't want to bake this cake for you. And the gay couple went to the Colorado Civil Rights Commission because Colorado has a law that protects people against being discriminated against on the basis of sexual orientation. The gay couple won in front of the Colorado Civil Rights Commission,

and then Jack Phillips sued. And he said his religious beliefs were being violated. And he also made an argument about his free speech rights, saying that he saw the cake as conveying a message that he didn't believe in. Basically, what we're seeing here are two important rights being pitted against each other. There's gay people's right to walk into an open for public business and be served. And then there's a store owner who says, well, what you want me to do for you, I see it as conveying a message that I don't believe in

because of my religion. So what did the court say today? The Supreme Court essentially punted, essentially said, well, what went wrong here was that the Colorado Civil Rights Commission kind of screwed up. They didn't treat Jack Phillips's religious beliefs with sufficient respect and deference. And so we're going to throw out the victory for this gay couple and kind of send it all back to start over. In his opinion for the majority, Kennedy said the Supreme Court isn't going to decide the big issue here. We're going to leave that for another day. So what did the commission do wrong exactly in the eyes of the Supreme Court, this Colorado commission that said the gay couple had a right to have this cake baked for them? Kennedy took exception to a couple of comments that one or two of the commissioners said during the hearing

where Phillips' refusal to bake the cake is being challenged. The commissioner said, Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust. We can list hundreds of situations where freedom of religion has been used to justify discrimination. Kennedy took that as essentially saying that religious belief is itself despicable. I would

argue that that's not quite fair to this commissioner. She was saying that to use your religious beliefs as the basis of discrimination and of hurting people, that's the despicable part. Why did the Supreme Court decide to attack this issue in such a narrow fashion? Right. Because they didn't really weigh in on the bigger issue. Does someone have a right to refuse service based on sexual orientation? Is that just what the Supreme Court does in these sort of situations? Not really. I mean, the Supreme Court does have this whole doctrine about how you don't reach a constitutional question if you don't have to. But that wasn't invoked here. There's the textual answer to your question, which is like, they thought this was the way to go. And seven justices were on board for this, including

Elena Kagan and Stephen Breyer, who are more liberal and moderate voices for the court. And, you know, to take it all at face value, it looks like they had a genuine concern that Phillips's religious beliefs weren't treated with enough respect. I think that it's also possible that there is a subtext here. This is the kind of very divisive fight that Kennedy in particular does not want to have about gay rights and in particular about marriage equality. There's a sense of like, OK, if we let some time pass, people are going to get used to gay marriage. They're not going to be freaked out about it anymore for religious reasons. And so we're just going to sort of let some time pass. One thing Kennedy mentions early and gives prominence to is that in 2012,

when this whole dispute was going on between the baker and the gay couple, Colorado itself hadn't even legalized gay marriage. And so I think Kennedy is saying there's something funny about calling this baker a discriminator in a world in which the state itself was still discriminating against gay people who wanted to get married. And this baker, Jack Phillips, he's just a regular dude. He wasn't like courting a big Supreme Court battle here. He was just honestly voicing his opinion on whether he wanted to bake this cake or not to this couple. Is that right? Yeah, I think on both sides, the gay couple wanted service. The baker didn't want to provide it. And then things escalated. I mean, Phillips

does end up being represented by a law organization that looks for cases where there are religious objectors. So in that sense, Phillips became a real spokesperson. He did a lot of publicity and press when the Supreme Court case was being argued. People of all walks of life are always welcome in the store. It's just that there are certain messages that I don't create. Cakes for Halloween, anti-American things, things that would disparage other people, including customers that identify as LGBT. This became then one of the biggest issues that the court was going to dive into last term. What were like the politics here? Were people weighing in on all the sides?

I would argue that the court's decision kind of takes the political momentum away from this case. So you can imagine a world in which the Supreme Court says this baker was wrong. Gay people have the same right as anyone else to receive service for their weddings in any context. And liberals would have cheered that and conservatives would have really worried about it. And there would have been a lot of fear mongering in the conservative press about the kind of run amok Supreme Court. And we're not seeing that. On the other side, we're also not really seeing a huge win for conservatives that's going to galvanize liberals. This is so specific and it really has to do with Colorado.

So it sounds like this just isn't the last we're going to hear about this. Is that fair? I think it's the last we're going to hear about Jack Phillips. I think this case is going to be over. There will continue to be cases about vendors refusing service to gay couples. If you go back to the 60s and you think about the fight that Black people had for their civil rights, sit-ins at lunch counters were a big thing. And you could imagine a world in which Woolworths or whatever business said, we have a religious belief against racial integration. And there is one case from that

time with the amazing name of Piggy Park about a barbecue chain that made that integration. And there is one case from that time with the amazing name of Piggy Park about a barbecue chain that made that argument. And the Supreme Court really at the time kind of dismissed it out of hand. So there really isn't a lot of basis in law for this idea that if you're a business open to the public, you get to deny service to people. On the other hand, when you listen to people debate this case, there's often a lot of discomfort with the notion that, like, the government can tell someone who has a wedding cake store what to do. Is this at all a blow to the people who celebrated the Supreme Court's 2015 decision that same-sex couples have a right to get married? Is this sort of a step backwards or just no step anywhere? There are certainly gay rights proponents who are going to feel really

disappointed today. If you wanted to have the security that no matter what business you walk into asking for wedding services, they're going to help you because that's the law, assuming you live in a state that protects you against discrimination. If that was what you were hoping for, you didn't get that. If the Supreme Court punted on this today, when are the justices going to sit down and get their hands dirty? Or will they at all? That's next on Today Explained. Thank you. people out there and they threw a bunch of them our way. Most of them. And now we have, you know, not one. But two. Interns. Yes, we do. Thanks, ZipRecruiter.com slash explained. Is that free? Well, I mean, I think the service costs money, but we tried it for free. I guess you get a free trial when you go to ZipRecruiter.com slash explained. Oh, that's pretty cool. Yeah. And 80%

of employers who post on ZipRecruiter get a quality candidate through the site within the first day. Wow. One more thing, Vanderplug. Our friends over at SB Nation, they got a new sports show called Foul Play Paid in Mississippi. It's a documentary series about the shady economy that fuels college football in the South. And it's got lots of juicy stuff. It's got scandal, a big huge firing, a bitter rivalry, and big dreams being crushed. The series is a result of five years of reporting by SB Nation writer Stephen Godfrey, and you can find the four 25

minute episodes of the show at Verizon's free streaming platform on your phones, on your computers, on any of your devices really. It's called Go90. That's the streaming service, foul play, pay to Mississippi. The series launched earlier this week. Check it out on Go90. Thank you. In the oral arguments, were the Supreme Court justices having a conversation about the bigger question here, the question of whether a store owner has the right to discriminate service. It sounds like Justice Kennedy was certainly alluding to it. Was that being sorted out? Yes.

There's a really interesting argument in the concurrences going on between Justice Kagan and Justice Gorsuch. So forget about Jack Phillips for a second. There was a totally separate case before the Colorado Civil Rights Commission in which a different customer wanted a cake that was like an anti-gay rights cake. He wanted a cake that would be shaped like the Bible. And he wanted it to say things on it like God hates sin and homosexuality is a detestable sin. OK, this is like the opposite of the fact pattern in the Supreme Court case we were just talking about. Which is like an interesting litmus test. Like if you think the gay cake should be allowed, can that cake also be allowed?

Exactly. So this guy went to three different bakers. None of them would make the cake for him. And he sued them all. And the Colorado Civil Rights Commission ruled in favor of the bakers. And the Colorado Civil Rights Commission said the bakers had a belief that this message was offensive and they had no obligation to bake this cake. Wow. And so the fight that Kagan and Gorsuch are having is about whether that case is in fact the same

as the other case. And Kagan says, no, it's not. And the reason she says it's not is that the only reason that Jack Phillips wouldn't sell the cake was that this was for a gay couple and their gay wedding. Whereas the other bakers who didn't want to make the homosexuality is a sin Bible cake,

they would have refused service to anyone, no matter who they were. But Justice Gorsuch doesn't see it that way. He argues that these cases are exactly the same, that they share all legally salient features. So what he wants this to be about is this idea that it's the message that the cake conveys as opposed to just the cake itself. The state seems to concede that if it were the message, your client would have a right to refuse. It's like a little confusing, but it's important because if you read Gorsuch's whole concurrence, he is basically, I think, saying that if you are a business owner and you have a religious belief and you don't want to do something because of your religious belief, you win.

Wow. Unlike Justice Kennedy, he doesn't think like, OK, a different civil rights commission could come out a different way. He's really saying the Civil Rights Commission can't tell why a baker is refusing service and it can't treat some bakers' refusals different from others. And so religious objectors really should win. And that is very different, I think, than the majority opinion by Justice Kennedy. If you extrapolate Justice Gorsuch's opinion, there is stance. Does that say that if your religion says it's OK to discriminate based on based on race, that you don't have to bake a cake for a black person or an Asian person or a Latino person? Well, that's a really good question. I'm sure Justice Gorsuch would say that's not what

he means. But when you try to figure out why that's not the implication, I think it's quite tricky. And this came up in oral argument. You're just saying race is different. I'm saying I mean, I don't want to put words in your mouth. I just really, you know, just want to know the answer. I think race is different for two reasons. One, we know that that objection would be based to who the person is rather than what the message is. And second, even if that were not the case, the court could find a compelling interest in the race inquiry, just as it did in the Pena Rodriguez case. The lawyers for Jack Phillips just said, well, racial discrimination is just wrong and everyone agrees about that

and we're not having that fight. So no, these are not related matters. It's such a narrower political ground you're standing on to say, like someone gets to be overtly racist as a store owner and we're going to be okay with that. Yeah. Once you have a state that says

we're protecting against discrimination on the basis of race or religion or sexual orientation, then it would seem like the state is treating those categories as parallel and equally worthy of consideration. And so it is not obvious to me why you don't open the door to exactly the kind of treatment you were just talking about. You were covering the court in 2015, obviously, when there was this momentous occasion that the Supreme Court said same-sex couples had the right to get married constitutionally. Do you sense a shift in the way the Supreme Court is handling same-sex issues? And if this bigger question

of whether or not this baker, Jack Phillips, had the right to refuse to bake this cake gets to the Supreme Court in earnest, will there be a different sort of decision than what we saw in 2015? I think this is all about Justice Kennedy. I mean, to me, this decision is Justice Kennedy trying to get out of a bind that the facts of this case put him into, right? So if you're Justice Kennedy, your legacy is this idea that gay rights are really important and worthy of dignity. Justice Kennedy is super into dignity. And that is something he has made it clear he has a lot of pride in. If you prevail, could the bakery put a sign in his window?

We do not bake cakes for gay weddings. Your Honor, I think that he could say he does not make custom-made wedding cakes for gay weddings, but most cakes would not consider that an affront to the gay community. At the same time, he also cares a lot about respecting people's religious beliefs. There's a kind of exquisite sensitivity to that in his opinion today, I would say. Tolerance is essential in a free society. And tolerance is most meaningful when it's mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips' religious beliefs. And so you see him kind of balancing those competing interests. Once Justice Kennedy is gone and he is not going to be there forever,

you know, there have been a lot of rumors of imminent retirement, then the balance is going to shift because the chances that President Trump is going to appoint a justice who calibrates these questions the way Justice Kennedy does is tiny. And so when you look at Justice Gorsuch, who is Trump's pick, you see a very different calculus going on, much more concern about religious beliefs and much less about gay rights. And so that is the potential shift we could see in the future. But we're not there yet. And in the meantime, is this something that's just going to be handled, you know, on a state level the way it's being handled by this Colorado commission? Yeah, I think that's right. And, you know, politically speaking, maybe that's

a good thing. We have different states grappling with the nuances of marriage equality and these questions of service in different ways. And if you're concerned about that, if you think that, you know, no store owner should be able to refuse service to a gay couple, then what you really want is a national federal law that protects gay people from discrimination. We don't have that yet. And that's sort of one place where you could put your political energy. Emily Bazelon writes about the law for The New York Times magazine.

She's also one of the hosts of the Political Gab Fest podcast. I'm Sean Ramos from This Is Today Explained. So have you met the interns yet? Oh, yeah. They seem really cool. I think I'm going to get them on here to talk about ZipRecruiter.com slash explained. No way. Doesn't that seem nice? Yeah, it totally was. We would not have gotten near as many qualified candidates without it.

ZipRecruiter.com, you know, it's the smartest way to hire. That's what they say.