Cakes and BBQ: Masterpiece Cake Shop, Ollie McClung and Piggy Park Enterprises

This post has taken an inordinately long time to write.  Thank you to all my loyal followers for your patience!

Aside from the holidays and being sick (which coincided) there is also trying to figure out how to write something about a case that has received so much media attention. And as I stated in a previous post, I claim an exemption from my usual "not taking sides" approach; I just feel too strongly about this case. So here goes.  (If you need a refresher on what this case is about, see my post of 11/9/2017 on Masterpiece Cake Shop).

By now you most likely know that the argument split along what is usually called ideological lines, with the conservatives (Roberts, Alito, Gorsuch, and Thomas) being on the side of the baker and the liberal wing (Ginsburg, Breyer, Kagan, and Sotomayor) being on the side of the Colorado Civil Rights Commission, with Justice Kennedy playing the role of the swing vote. You may also have heard that some commentators believe that Kennedy will side with Masterpiece because of his questioning of the Civil Rights Commission's attorney at oral argument, based on a statement made by one member of the Commission members that Kennedy regarded as very hostile to religion. Other commentators pointed to Kennedy's concern that a ruling for Masterpiece could allow the cake shop to put up a sign that said they would not bake cakes for same-sex couples, which Kennedy opined "would be an affront to the gay community".

There is little doubt the final result comes down to Kennedy, which might mean he will write the majority opinion (as he did in Obergefell, which ruled that the fundamental right to marry is guaranteed to same-sex couples by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution). Here, in my opinion, is where hearing the oral argument audio (rather than just reading the transcript) is crucial. I remember my days of sitting through depositions and then reading the transcripts and then using the depositions at trial. The tone of a statement can mean a lot: you're unlikely to pick up sarcasm (for example) merely from a transcript.  Of course, the ability to translate knowing how something was said into direct or cross-examination when all the judge has is a transcript is tricky. That is a long way of saying that having heard Justice Kennedy say both things, I would not put quite the weight on either statement that some people are (although it does make for a good story). Yes, he said them, but we can be certain that Kennedy knew he was going to be the swing vote even before the oral argument.  You might recall that this case was kicked down 17 conferences before being granted and given that you need four votes to grant, you can probably guess (and it is always a guess) which four justices voted to hear the baker's case.

I'm not going to focus too much on the argument; you can hear/read for yourselves the almost 90 minutes of whether baking a cake is speech (more technically "expressive speech") and how that is the same or different from a chef, hairdresser, tailor, calligrapher or architect (!). It became a rabbit hole down which everyone went.

Telling was Justice Breyer's point (in response to the baker's attorney): " not protected when he creates the Laurentian Steps [the architect argument], but this cake baker is protected when he creates this cake without any message on it for a wedding?  Now that---that really does baffle me, I have to say." (Transcript p. 18, lines 4-10.  And this, also from Justice Breyer: 
JUSTICE BREYER: All right, then, what is the line? That's what everybody's trying to get at, because obviously we've all gone -- I went to a Mexican restaurant. They have this fabulous Mole specially made for the people at the table to show what important and wonderful evening it was, which it did import -- impart.  There are all kinds of restaurants that do that. And maybe Ollie's Barbecue, you know, maybe Ollie thought he had special barbecue. All right. Now, the reason we're asking these questions is because obviously we would want some kind of distinction that will not undermine every civil rights law from the-- from -- from the year two -- including the African Americans, including the Hispanic Americans, including everybody who has been discriminated against in very basic things of life, food, design of furniture, homes, and buildings.

Transcript at pp. 18-19, lines 13-25, 1-8 (emphasis added).  I totally agree with Justice Breyer.  But why is he referring to Ollie and his barbecue?

Therein lies both a major civil rights case and, I would submit, the straightforward answer to this case. The case is Katzenbach v. McClung, 379 U.S. 394 (1964) in which the federal government sued Ollie McClung for violating the Civil Rights Act by refusing to serve his barbecue to African-Americans in his restaurant, Ollie's Barbecue, relegating them to take-out.  The Supreme Court unanimously held that this was in violation of the Act because it was discrimination under Title II ("Public Accommodations") of the Act.  Public accommodations, in US law, are generally defined as facilities, both public and private, used by the public. Examples include retail stores, rental establishments, and service establishments as well as educational institutions, recreational facilities, and service centers.  And keeping with the barbecue theme, there is Newman v. Piggy Park Enterprises, 390 U.S. 400 (1968). While the case was technically only about the award of attorney's fees under the Civil Rights Act, the Court, in granting attorney's fees to Newman and her fellow class members who sued over the discrimination they had endured at Piggy Park, even worse discrimination than in McClung, stated in footnote 5 a very on-point comment to the Masterpiece Cake Shop Case. Footnote 5 reads:

Indeed, this is not even a borderline case, for the respondents interposed defenses so patently frivolous that a denial of counsel fees to the petitioners would be manifestly inequitable. Thus, for example, the "fact that the defendants had discriminated both at [the] drive-ins and at [the sandwich shop] was . . . denied . . . [although] the defendants could not and did not undertake at the trial to support their denials. Includable in the same category are defendants' contention, twice pleaded after the decision in Katzenbach v. McClung, 379 U. S. 294, . . . that the Act was unconstitutional on the very grounds foreclosed by McClung, and defendants' contention that the Act was invalid because it 'contravenes the will of God' and constitutes an interference with the 'free exercise of the Defendant's religion.'" 377 F.2d 433, 437-438 (separate opinion of Judge Winter). [390 U.S. 400, 404] 

Apply footnote 5 in Piggy Park to the Masterpiece Cakeshop case.  Why is the baker's religious defense not as "patently frivolous" as that of Maurice Bessinger, the owner of Piggy Park? This is what I think Justice Breyer was getting at.  An enterprise is offering to sell cakes, rather than barbecue, to the public. The enterprise is a public accommodation.  Colorado's anti-discrimination law reads much like Title II of the federal Civil Rights Act.  Race and sexual orientation are both protected categories.  No matter how you may feel, being a public accommodation comes with certain restrictions on your conduct. Maurice Bessinger was free to write and speak about white supremacy and the supposed Biblical objections to the "mixing of the races"; he was not free to run a public accommodation that refuses to seat and serve African-Americans.  You couldn't with pulled pork, even with your signature sauce; you can't with cakes either, however fancy.

And Justice Breyer, asking his "Supreme Court Justice that used to teach at Harvard" question--how can we possibly rule for the baker without undermining every civil rights law "from year two"?--has all of this firmly in mind, as I think three other justices do.  His question "Can you draw a line?", which not surprisingly no one on the baker's side really could, has, he thinks, and I think, no answer: you can't.  Hopefully, Justice Kennedy will think so too.

Next up: I return to my usual non-committal self and welcome back Officer Friendly.  Yes, folks, the Fourth Amendment returns.


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  3. As a follow-up to this case, I believe I subsequently read that the court (I don’t recall which one) fined the defendants $135,000 (or upheld an earlier fine, I’m not sure which). What impact does that have on the case before the SCOTUS, if any, and has anything further come out of the court on the case?

    1. Good question, Rich. The case you are referring to was an Oregon case that was identical in all important respects to Masterpiece. The Oregon Court of Appeals upheld the fine of $135,000 against the bakers who refused to bake a cake for a same-sex couple, citing their religious convictions. I have not seen any report of an appeal to the Oregon Supreme Court.
      This case will have no impact on Masterpiece for a number of reasons. First, it occurred after the argument in Masterpiece, so the decision was not briefed. More than that, it is from an intermediate state appellate court which obviously has no precidential effect on SCOTUS, and was not even from the same state as Masterpiece. The Supreme Court does keep track of things, so they are sure to have heard about it, but it won't have an impact.
      There has been nothing further on Masterpiece from SCOTUS. The smart money is on a decision late in the term, probably late June.
      Thanks for the comment and question!


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