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On the same-sex video ruling here and the ‘cake’ case in Colorado

REUTERS/Andrew Winning
The upcoming "cake" case also draws much attention because it raises hot-button issues that are easy for lay people to visualize and understand, even if they don't agree on how they should be resolved.

One of the most notable cases on the docket of the U.S. Supreme Court for its 2017-18 term, which begins next Monday, had a trial run, so to speak, here in Minnesota last week.

Marshall H. Tanick

Among the many high-profile matters that the high court will decide in the upcoming year the litigation known as the “cake” case is near the top of the marquee. It stands out in a crowded Supreme Court calendar that includes the constitutionality of gerrymandering of elective districts on partisan grounds in neighboring Wisconsin and the legality of sports betting in various states other than Nevada, in addition to a bevy of others.

The “cake” case challenges a determination by a state civil rights agency in Colorado requiring a bakery in Lakewood, a suburb of Denver, to furnish a cake ordered by a gay couple for their a same-sex wedding ceremony despite the bakery owner’s unwillingness to do so because of his opposition to gay marriage. The litigation, which has been going through the legal process for five years, will be heard by the justices in Washington, D.C., later this fall, and a decision is expected before the court adjourns next summer.

The arguments

The demarcations are clearly drawn. The Colorado agency, supporting the same-sex couple, asserts that the refusal to provide the post-nuptials pastry to them conflicts with the state civil rights law as well as the constitutional imperative laid down by the Supreme Court in its ruling in 2015 in Obergefell v. Hodges requiring states to recognize marriages between individuals of the same gender. The bakery owner, on the other hand, claims that forcing him to furnish the cake violates his right of freedom of expression under the First Amendment.

The case has attracted extraordinary attention for several reasons. It comes on the heels of the controversial Obergefell validating same-sex marriages under the Equal Protection clause of the U.S. Constitution, a practice that had been followed in the District of Columbia and three dozen states under their own laws law prior to the ruling — including Minnesota, which adopted same-sex marriage legislation in 2013, three years after the voters narrowly defeated a referendum to permanently bar such marriage in the state Constitution. The “cake” litigation, formally known as Masterpiece Cake Shop v. Colorado Civil Rights Commission, will test how far the high court is willing to extend the rationale of its “same-sex” ruling, which was predicated on what Justice Anthony Kennedy, who wrote the decision for the 5-4 majority of the tribunal, referred to as the “fundamental right” to marriage. It also might indicate how the newest jurist, Justice Neil Gorsuch, a Colorado resident no less, views the “same-sex” rationale and, perhaps, other precedents as well. 

An Arkansas case

It will not be the first time for either proposition. This spring, in its first occasion to take up same-sex marriage rights since the Obergefell decision, the justices ruled in a case from Arkansas that a state must allow same-sex spouses to be listed as parents on birth certificates of children born by artificial insemination to their spouses if they allow other opposite sex nonbiological parents to be listed, as most do. 

But Justice Gorsuch, in one of his first pronouncements on the bench, was one of two dissenters, joining staunch same-sex marriage foe Clarence Thomas in opposing the ruling.  

The upcoming “cake” case also draws much attention because it raises hot-button issues that are easy for lay people to visualize and understand, even if they don’t agree on how they should be resolved. 

But some guidance to the high court jurists might be forthcoming from the decision in Minneapolis by Judge John Tunheim, the chief judge of the Federal District Court in Minnesota. He ruled on Sept. 20 on the prospective refusal by a Christian couple in St. Cloud seeking to enter the wedding film business to limit their services only to heterosexual couples because of their desire to promote their anti-gay-marriage religious beliefs. The judge dismissed the pre-emptive lawsuit by the couple against the State Department of Human Rights, entitled Telescope Media Group v. Lindsey, reasoning that the provision of the State Human Rights Act prohibiting discrimination by businesses in providing consumer goods or services based on the sexual orientation of the customers does not violate the First Amendment rights of the couple or others seeking to make similar distinctions. He reasoned that the desire of the reluctant videographers to post a notice on their website that their services are not available to same-sex couples is akin to placing a “White Applicants Only” sign in a business facility, which would be a form of illegal discriminatory conduct. 

Freedom of expression clause

Although the claimants alluded to a religious freedom claim under the First Amendment, the case, interestingly, revolved around another provision of the First Amendment. It focused on the clause protecting freedom of expression, which the judge held was inapplicable because the couple’s proposed marketing plan constituted “conduct carried out through language … not protected by the First Amendment.” The entrepreneurial couple, the judge pointed out, could easily “avoid hardship” to the exercise of their views by providing the services but refusing “to post videos of same-sex weddings online.”

The claimants may have emphasized the freedom of expression, rather than religious freedom, issue because the Minnesota courts generally have rejected claims of businesses that compelling them to take actions impermissibly conflicts with their religious beliefs. In those matters, the courts usually have ruled that the anti-discrimination provisions of the Human Rights Act trump constitutional claims of infringement of religious tenets or other First Amendment claims.

One of the leading examples is a cutting-edge 1984 case that made it all the way to the Supreme Court, Roberts. v. Jaycees, in which the national Jaycees organization, contrary to the inclusive wishes of its local chapters in Minneapolis and St. Paul, barred women members, a proscription that was challenged on gender discrimination grounds under the state Human Rights law. Reversing a federal appellate court ruling, the Supreme Court in D.C. unanimously deemed the exclusion illegal, rejecting a claim that compelling the group to accept women violated the right of their male members to freedom of association under the First Amendment. But, less than a decade later, the same tribunal upheld the right of St. Patrick’s Day parade organizers in Boston to exclude gay marchers because of the First Amendment associational rights of the anti-gay participants.  

State rulings haven’t been uniform

Nor have the Minnesota state court decisions been wholly uniform. In one noteworthy criminal case, the state Supreme Court ruled that the state constitutional “freedom of conscience” provision, which it interpreted broader than the counterpart religious freedom clause under the First Amendment, precludes a criminal charge against an Amish farmer in southern Minnesota for driving a buggy lacking the legally required slow-moving vehicle sign on public roadways, which the farmer maintained violated his religious belief against bearing government-compelled signage. But that case, State v. Hershberger, was decided more than 27 years ago, was not a civil case, and did not involve the anti-bias laws.

The upcoming Supreme Court “cake” case is shaping up on grounds similar to the Minnesota videography matter. The objecting bakery is pitting its position on free speech, rather than religious freedom. But that hardly assures that the result will be the same. There probably are four solid votes among the nine jurists against the baker in the Court’s liberal wing, and probably at least three, possibly four aligned the other way, including Justice Gorsuch, occupying the position formerly held by the late Antonin Scalia, a virulent anti-gay jurist who famously declared that the author of the “same-sex” marriage ruling, Justice Kennedy, should be so embarrassed that he ought to “hide (his) head in a bag.”

Well, Justice Kennedy happens to be in his usual posture, of the “swing” justice, and his vote may be decisive in the “cake” case. Observers note that he may be swinging in two directions: his desire to uphold the rationale of the Obergefell same-sex marriage ruling and what he referred to in that decision as the “humanity” of the couples who engage in it combatting with his strong support for First Amendment free speech claimants like the bakery. Another possible omen: Justice Kennedy joined with the narrow 5-4 majority in the 2014 Hobby Lobby case upholding a religious freedom claim by a business that objected on grounds of its owner’s faith beliefs to provide mandatory contraceptive coverage in its health insurance policy.

Dueling slogans

The Colorado case has led to dueling slogans. The bakery and its advocates remind the opponents that they “can’t have their cake and eat it.” But the gay couple denied the wedding cake and their supporters are banding behind the chant of “let them eat cake,” a phrase uttered dismissively by the French Queen Marie Antoinette to destitute housewives in France protesting their inability to obtain bread for their families. That comment, coupled with other behavior, led to her, along with her husband, King Louis XVI, having their necks meet the guillotine during the French Revolution.

Regardless of the rhetoric and, for that matter Judge Tunheim’s ruling here in Minnesota, the outcome of the “cake” case is likely to be a closely contested and probably will be neck-and-neck when the Supreme Court jurists ultimately get around to voting on it.

Marshall H. Tanick is a Twin Cities constitutional and employment law attorney.


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Comments (1)

  1. Submitted by Ilya Gutman on 09/30/2017 - 02:23 pm.

    Very even-handed piece. Maybe an author can answer a few questions:

    1. “the courts usually have ruled that the anti-discrimination provisions of the Human Rights Act trump constitutional claims of infringement of religious tenets or other First Amendment claims.” How can a law trump the Constitution?

    2. Cake bakers, photographers, videographers… poets, writers, artists, composers… Doesn’t it look somehow wrong that the government may compel a poet to write a poem when he or she doesn’t want to? On the other hand, who wants a half-baked cake so maybe it would be better to have sign?

    3. Can a religious business owner exclude all sinners?

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