In order to prepare for their December 5 Supreme Court oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, Georgetown Law Professor David Cole — now on leave to serve as the national legal director for the American Civil Liberties Union — and Fred Yarger, the solicitor general of Colorado, mooted their case at Georgetown Law’s Supreme Court Institute (SCI) just days before.

But for those who couldn’t make that off-the-record event in Hart Auditorium — or the real argument before the Court (pdf) — the Georgetown Law chapters of the Federalist Society, the American Constitution Society and the American Civil Liberties Union sponsored a debate on November 30 that outlined the issues.

Adjunct Professor Amanda Shanor, who teaches an Advanced Constitutional Law class at the Law Center, and attorney Jordan Lorence, senior counsel of Alliance Defending Freedom, both played a role in briefing and preparing the Masterpiece Cakeshop case — the former for the ACLU and the Colorado Civil Rights Commission, and the latter for the entities that declined to create a wedding cake for a same-sex couple. The November 30 event was moderated by Adjunct Professor Stephanie Inks, who teaches a Law and Religion practicum; Ethan Womble (L’18), president of the Federalist Society, and Justin Burnam (L’18) introduced the panelists.

“In what has been a jam-packed Supreme Court term, one of the most hot-button cases to be granted cert is Masterpiece Cakeshop…,” Womble said. “This case presents issues of free speech, free exercise of religion and protection against discrimination based on sexual orientation.”

Government power

Lorence asserted that the right to same-sex marriage, recognized by the Supreme Court in 2015’s Obergefell v. Hodges, was distinct from a First Amendment free speech right to not to be compelled to create a wedding cake to celebrate a same-sex couple.

“One of the things we are going to be emphasizing is where the government power lies…,” Lorence said. “In Obergefell, it was, we don’t recognize the marriages of same-sex couples, and the Supreme Court said that was unconstitutional. But here, these are private actors… [T]he government is saying, you have to basically get in line and create expression that you don’t agree with, or it’s an act of sexual orientation discrimination by a public accommodation.”

Cake artist Jack Phillips and his cake shop was found to have engaged in illegal discrimination under the state antidiscrimination law, Lorence explained. The question is whether the Colorado public accommodations law, as applied, violates the freedom of speech and free exercise clauses of the Constitution.

“This is not a denial of service case…Jack serves LGBT people in other contexts,” Lorence contended. “But he doesn’t create cakes for all messages…there are certain things that his Christian beliefs lead him to do. He doesn’t create Halloween cakes, he’s been asked to celebrate people’s divorces, which he will not do as a matter of conscience. He doesn’t design cakes that say that marriage can be defined other than one man and one woman.”

Equal Opportunity

But Shanor — who is also a fellow at Georgetown’s Center on National Security and the Law — said that there are broader constitutional issues for society at large than simply determining whether cake is art that can be compelled.

“[This includes] whether everyone has an equal opportunity to participate in what the Court has called in Romer v. Evans the transactions and endeavors that constitute ordinary civil life in a free society,” she asserted. “That is whether you can go into a store, and know that you can go into a store, and won’t be turned away for who you are.”

Since the Civil Rights Era, the Supreme Court and lower courts have rejected arguments claiming exemptions for laws like the Colorado public accommodations law, Shanor said. “In every prior case, and there are many of them…the Supreme Court has rejected all of these claims, and instead has held that discriminatory conduct by business[es] serving the public has never been afforded affirmative constitutional protections.”

If the bakery wins in this case, Shanor asked later, would someone be allowed to refuse service to an interracial or interfaith couple on the same grounds? “The big question here is whether or not this will be the moment when the Supreme Court decides to do that.”

In this video, Professor Randy Barnett, who joined an amicus brief of 34 legal scholars in support of the Masterpiece Cakeshop petitioners, shares his take on what a compelled speech holding for the baker could mean.