Cake Jesus has filed his reply brief with the Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Oral argument is scheduled for December 5.
I’ve written several times about this case, and the flaws in Cake Jesus’ arguments (and those of his amici curiae) are too numerous to mention again. Being the petitioner in the case, unlike the amici (including the U.S. Government), Cake Jesus gets to file a reply brief to address the arguments made by the respondents in their briefs. Predictably, the same flaws abound.
The central flaw, though, is that Cake Jesus and amici identify no principled distinction — because there is none — that would allow Cake Jesus to avoid liability under the Colorado Anti-Discrimination Act if he refuses to provide a cake for a same-sex wedding celebration, but would not allow Shower Jesus to avoid liability under the same Act if he refuses to install a custom shower stall in a black family’s home because he has a sincere and deep religious objection to n***er-bathing. The reply brief, again, fails to do that.
It starts with the Introduction; as with the opening brief it is very easy to transfer and read the arguments as if the petitioner was Shower Jesus instead of Cake Jesus (citations omitted in all quoted excerpts hereinafter):
Respondents ... insist that public-accommodation laws override the freedom of for-profit speech creators who serve everyone but object to particular messages that clients ask them to express. No matter the form of speech, the message requested, or the protected classification at issue, Respondents would empower governments to compel expression—even when the speech is custom art celebrating [bathing] ([an activity] inherently sacred for many) and the speaker is a graphic designer, filmmaker, photographer, fine-art painter, or calligrapher.
Respondents take this extreme position because they cannot deny that this case involves compelled speech. The Commission has applied the Colorado Anti-Discrimination Act (“CADA”) not to the mere sale of [Shower Jesus]’s products but to his creation of artistic expression. And its order requires that if [Shower Jesus] continues to create [custom baths] at all, he must design [baths] expressing support for [n***er-bathing] and include on them any words or designs that appear on any of his other [baths]. The First Amendment forbids such attempts to dictate the content of an artist’s work.
After stretching CADA to punish [Shower Jesus], the Commission construed that statute to exonerate three [custom kitchen and bath] artists who refused to express religious messages opposing [n***er-bathing]. Had the commission applied the same rationale to those artists that it applied to [Shower Jesus], it would have punished them too. After all, CADA forbids refusing service because of religious beliefs, and those [custom kitchen and bath] artists admitted that they declined the requests because of the religious beliefs expressed on the [tilework]. Permitting that while punishing [Shower Jesus] shows that the Commission discriminates against [Shower Jesus]’ religious viewpoint.
Compelling artists like [Shower Jesus] to celebrate what their faith proscribes will not foster civility, pluralism, or tolerance. Coercion of conscience and expression never does. But the ruling that [Shower Jesus] seeks—a narrow decision forbidding the government from coercing artistic expression contrary to conscience—strikes a sound constitutional balance. It ensures that public-accommodation laws will forbid businesses from discriminating against people solely because of who they are, while affirming [Shower Jesus]’s freedom to choose the ideas deserving of expression. The First Amendment promises him this basic liberty.
(emphasis added).
The individual, one William Jack, who ordered the referenced hate-cakes from the three other bakers, sued for discrimination and lost, also argued in his amicus brief that CADA and similar anti-discrimination laws proscribe “refusing service because of religious beliefs” as opposed to religious identity, but that is simply wrong. Religious “beliefs” are thoughts qua thoughts, merchants are not mind-readers, and no anti-discrimination law prohibits a merchant from discriminating against a customer because of thoughts, ideas, prejudices, superstitions or “beliefs” that the customer may or may not have. A law like that would be unworkable; for one thing, it would eviscerate public health laws, as one could easily assert that going shirtless and barefoot in a restaurant is a “religious belief” (or an “exercise of religion”), and that assertion would be unchallengeable in court, thus “No Shirt, No Shoes, No Service” would be equivalent to “No Colored, No Jews, No Mexicans.”
This argument is also unhelpful in at least two ways. One, which I’ve written about before, is that it means anti-gay sentiment is such an integral part of the “Christian” identity that anyone who hates gays should be assumed to be a Christian and vice-versa. Put another way, anti-gay hatred is not only an inherently religious belief, but an inherently Christian characteristic. Two, they basically argue that it’s the subjective offensiveness of the “message,” not the identity of the customer, that should be the determining factor as to whether the anti-discrimination law (or an exemption thereto) should apply, without even considering whether one’s finding a “message” of love, joy, celebration and happiness “offensive” might be just a wee bit sociopathic.
But, back to Cake Jesus’ brief and its failed attempts to distinguish Cake Jesus from Shower Jesus. As noted above, it is impossible to read the brief while mentally substituting Shower Jesus for Cake Jesus, kitchen-and-bath installers for bakers, custom tilework for custom confectionery, and n***er-bathing for same-sex weddings, and not find an exemption from anti-discrimination laws for Shower Jesus. For the most part, it doesn’t even try.
[Shower Jesus] serves [African-American] individuals; he simply declines to create art that celebrates [n***er-bathing].
Respondents argue that [Shower Jesus] objects not to any message but only to “who the product is for.” That is not true. [Shower Jesus] has always evaluated [custom kitchen and bath] requests based on the messages that they convey. His [shower installations] are no different. In that context, his decision-making depends on what vision of [bathing] the [shower] will celebrate and what context he will place it in—not who will purchase or [bathe in] it.
As [Shower Jesus] has explained, and Respondents do not dispute, each of his [custom shower installations] announces the [family’s] [bathing] and conveys celebratory messages about the event. Like messages communicated through other speech, the ideas expressed through [Shower Jesus]’s [custom shower installations] … depend on their context. In particular, a [shower stall] [in a black family’s bathroom] celebrates that [family’s bathing], which is a message that [Shower Jesus] cannot in good conscience convey.
…
Other facts confirm that [Shower Jesus] is concerned not about the [race] of his customers but the ideas that his [custom shower installations] convey. [Shower Jesus] would decline to create a [shower] celebrating [n***er-bathing] regardless of whether the customer is a [black family] or a [white landlord] [renting the house to a black family]. Similarly, [Shower Jesus] would celebrate [white-people bathing] even if one or [more] of the [family members] [was black]. Moreover, [Shower Jesus’] “decent and honorable” beliefs are grounded solely in a view about the nature and definition of [bathing], not in hostility toward [African-American] individuals. Those views are even shared by some in the [black] community.
If you like that, you’re going to love this:
Protecting artists who serve [black] customers but cannot in good conscience create art celebrating [n***er-bathing] strikes a sensible balance and promotes tolerance on the divisive issues in this case. It might cause some who resist expanding public-accommodation laws because of cases like this to rethink their position. And others intent on punishing people like [Shower Jesus] might adopt a more tolerant position.
Nice, eh? That’s their idea of tolerance for you.
The brief goes on and on like this. And it does make a nominal effort to distinguish Cake Jesus from other commercial “artists” who refuse to make or sell products that “celebrate” things (or people) they hate, by simply asserting, without basis or explanation, that they are distinguishable:
[C]ake artists who object to “celebrating a black person,” and photographers who will not “photograph Mexican families” because of “personal animus,” are beyond what free speech would protect.
The spectacular lack of irony or self-awareness in that statement is exceeded only by that which comes immediately before:
One [of Respondents’ hypotheticals] discusses an architect who refuses a remodeling job to avoid “sending a message of equal citizenship for Latino people.” A remodeled kitchen communicates no such message.
(emphasis added). Really? It doesn’t? Says who? Why does a remodeled kitchen not communicate a “message” about the family that ordered it, from the contractor who designed it? The brief does not explain. Indeed, this brief, the opening brief, and many of the amicus briefs supporting Cake Jesus, argue vehemently that a wedding cake communicates whatever “message” the baker thinks it communicates, regardless of whether any third party gets that “message” from seeing it. If Shower Jesus believes he would be “celebrating” (or that he would be perceived by others as “celebrating”) n***er-bathing by remodeling a black family’s bathroom, a “message” which he “cannot in good conscience convey,” who is Cake Jesus to say that the work or the resulting product “communicates no such message”?
The hypocrisy and cynicism of this are staggering; the wholly arbitrary and unprincipled nature of Cake Jesus’ proposed exemption from public-accommodation laws is herein laid bare. If “cake artists who object to ‘celebrating a black person’ … are beyond what fee speech would protect,” then “cake artists who object to ‘celebrating’” a same-sex wedding “are beyond what free speech would protect.” If the presence in someone’s home of a custom kitchen or bath “communicates no such message” from the designer about the family that lives, cooks and bathes there, then the presence at someone’s wedding of a custom cake “communicates no such message” from the baker about the couple being married or their marriage.
The most sickening part of the brief is when it makes the same risible argument that the U.S. Government made in its amicus brief, which is that although discrimination on the basis of race is a very bad thing that the state has a compelling interest in preventing, discrimination on the basis of sexual orientation is really no big deal:
Respondents repeatedly invoke hypothetical cake artists who object to designing wedding cakes that celebrate interracial marriages. The record in a case like that would likely reveal that the cake artist engages in broader class-based discrimination against certain races. But assuming such a cake artist objects only to the message of those wedding cakes and otherwise serves people of all races equally, the compelled-speech doctrine would apply. The government, however, could potentially satisfy strict scrutiny because “racial bias implicates unique historical, constitutional, and institutional concerns.”
(emphasis added). Right. So Shower Jesus is probably an all-purpose racist, in which case he should be held liable for race discrimination. But if Shower Jesus only objects to n***er-bathing and still sells generic cabinet knobs to black people, then holding him liable for race discrimination would be “compelled speech,” although he still won’t be exempt from anti-discrimination laws because the government should protect n***ers but should not protect gays from commercial mistreatment.
Actually, I take that back; the most sickening part is this:
[P]eople like Phillips often face significant opposition, and market forces discourage them from exercising their beliefs. Few will have the courage of conviction to endure the harassment—and death threats—that Phillips still experiences today.
I guess Cake Jesus wouldn’t be a modern American Christian without indulging in a little self-martyrdom. And that’s the theme of the rest of the brief; what commercial “artists” could be “forced” to “express” if he loses this case, and insistence that the Colorado Civil Rights Commission deliberately punished him solely for his “beliefs,” not for his discriminatory conduct, which he equates with the other bakers’ refusal to produce William Jack’s hate-cakes, which the Commission, in turn, purportedly unfairly, found was not discriminatory and thus permissible. Unable to see himself as anything but a victim, a hero and a martyr, Cake Jesus is unable to fathom the difference.
In the end, I stand my firm in my belief that Cake Jesus should not, cannot, and will not win this case. It should be 9-0 but it will be 6-3; Alito, Thomas and Gorsuch will side with Cake Jesus and write dissenting opinions that will give Fox News et al. their talking points but have no force of law. Gorsuch’s should be particularly entertaining.