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Tuesday, December 05, 2017

Argument in Masterpiece Cakeshop

Having read the transcript, I have no idea where this is going or what standard anyone seems to be gravitating to. The only one of the four advocates who really got an opportunity to frame a legal standard was David Cole of the ACLU on behalf of the complainants, who was given the time to explain how O'Brien fits the scheme. Otherwise, counsel for the petitioners got caught up in an escalating series of hypotheticals involving make-up artists and sandwich artists and the difference between chefs and bakers (and, I thought, fumbled a bail-out question from Justice Alito about the expressive nature of architecture). SG Noel Francisco acknowledged the Court may not adopt his "race is different" position, although he did put across a "predominant" purpose or effect idea. And everyone fought the justices' hypotheticals (there seems to be more of that going on this Term).

The justices also seemed all over the map. Only Justice Alito asked questions obviously designed to support the attorneys on one side and challenge the attorneys on the other. The other Justices were asking pointed and prodding questions of both sides. And a lot of those questions read like a Donald Trump speech--"It's a great cake, it's a beautiful cake."

We did learn a few things: 1) Justice Alito does not go to may five-star restaurants; 2) part of Francisco's wedding cake remains in his freezer; 3) Justice Gorsuch does not like the taste of wedding cake*; 4) Ollie's Barbecue and Piggie Park have not gotten this much attention in 50 years.

[*] We were lucky. Our wedding cake was delicious.

Posted by Howard Wasserman on December 5, 2017 at 05:39 PM in First Amendment, Howard Wasserman | Permalink



The example is still dealing with a person who is directly engaged in the act they object to. I went with someone providing an abortifacient to get a similar degree of removal as we have in the Masterpiece case. The baker isn't being asked to marry the couple, just to provide something that participates in that process. A doctor prescribing abortifacients is similarly removed.

Posted by: Derek Tokaz | Dec 6, 2017 10:28:29 PM


http s://www .pop. org/federal-judge-overturns-indiana-law-banning-sex-selective-abortion/

So let's say a doctor is willing to do an abortion, but not if the mother says that she wants to do it because the baby is the wrong sex or race--because that violates Christian doctrine to not discriminate based on sex or race?
Would that be a better analogy?

Posted by: Tanya Pratt | Dec 6, 2017 12:29:30 PM


The argument I've generally heard is that the baker can't object because they're not being asked to participate in the activity they object to. If you accept that argument (I personally don't), then the doctor analogy doesn't work. The doctor is directly involved in those procedures.

Perhaps the closer analogy might be to a doctor who can and is willing to prescribe abortifacients, but only in specific circumstances. Perhaps he objects to using them to abort a fetus with Down's Syndrome. He's fine with their use for medical need and family planning, but has a strong moral and religious objection to using them for eugenic purposes.

Posted by: Derek Tokaz | Dec 6, 2017 11:25:25 AM

"Only Justice Alito asked questions obviously designed to support the attorneys on one side and challenge the attorneys on the other. The other Justices were asking pointed and prodding questions of both sides."

Maybe you could say that of Breyer, although I wouldn't quite say his vote appears to be in doubt, but I think that's a pretty big stretch for Justices Sotomayor, Kagan, and Ginsburg (in descending order of how stretchy it is to say that their questions weren't obviously designed to support attorneys on one side and challenge attorneys on the other).

Posted by: Asher Steinberg | Dec 5, 2017 7:33:13 PM

Do doctors have the right not to perform vasectomies, abortions, circumcisions, or physician-assisted suicides? Or once they open to the public, do they have to perform any legal procedure someone is willing to pay them for?

Would not performing a particular procedure be a good analogy to not catering a particular event?

Posted by: Rick | Dec 5, 2017 6:00:33 PM

Link's wrong

Posted by: An Anon | Dec 5, 2017 5:51:56 PM

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