This raises the possibility of other goods and services being denied to gay people by those who cite their free-speech and free-expression-of-religion rights — just as Jim Crow merchants did when refusing to serve African-Americans a half-century ago.
“The person who does floral arranging,” asked Justice Ruth Bader Ginsburg. “Would that person also be speaking at the wedding?”
Yes, Waggoner answered, “if they are custom-designed arrangements.”
Justice Elena Kagan decided to play. “The jeweler?”
Possibly, Waggoner reasoned.
“The makeup artist?” Kagan persisted.
Waggoner said that the makeup artist would not be speaking — neither, she replied to Kagan’s further questions, would the wedding tailor or the chef.
“Whoa!” Kagan pounced. “The baker is engaged in speech, but the chef is not engaged in speech?”
And let’s not even get into the butcher and the candlestick maker.
The case could go either way, with four justices apparently on the cake-is-speech side, four on the cake-is-food side and Anthony M. Kennedy in between. But Kennedy did tell Francisco that his side in the case has a “problem,” because “there’s basically an ability to boycott gay marriages.”
Answer is a piece of cake
Lawyers for the cake baker argued that discrimination on the basis of race or disability is different because it is based on “who the person is” — as if being gay isn’t who the person is.
The high court has enshrined the right to same-sex marriage, but neither the court nor Congress has protected sexual orientation the way they protect race, religion, gender and disability. Hence the slippery-slope questions.
Justice Samuel A. Alito Jr. asked about architects.
“Generally that would not be protected,” Waggoner ventured.
Justice Stephen G. Breyer interjected. “So,” he said, “Mies or Michelangelo or someone is not protected when he creates the Laurentian Steps, but this cake baker is protected when he creates the cake without any message on it for a wedding?”
This is important, Breyer said, because “we want some kind of distinction that will not undermine every civil rights law from the year to — 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.”
Piece of cake: If you can’t do it to racial and religious minorities, women and the disabled, you shouldn’t be able to do it to gay people.