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SCOTUSblog is decorated with cakes this morning...

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SCOTUSblog is decorated with cakes this morning...



... as the Supreme Court hears oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the case about whether the government can force a cake-decorator to make a cake for a same-sex wedding. Here's the SCOTUSblog argument preview. Excerpt:
In his brief at the Supreme Court, [Jack] Phillips depicts the legal battle as a pivotal one that threatens “his and all likeminded believers’ freedom to live out their religious identity in the public square,” as well as the “expressive freedom of all who create art or other speech for a living.” He stresses that the First Amendment protects expression, which is not limited to words but can also include visual art, from traditional paintings and movies to tattoos to stained-glass windows. The “expression” protected by the First Amendment also extends to Phillips’ wedding cakes, he says, even if they are made with “mostly edible materials like icing and fondant rather than ink and clay,” because they convey messages about marriage and the couple being married....

The federal government argues that public-accommodations laws like Colorado’s will generally pass constitutional muster, because they normally only regulate discrimination in providing goods and services – conduct that is not protected by the First Amendment – rather than expression....

The implications of a ruling for Masterpiece, the state and the couple suggest, would be sweeping, far beyond the “countless businesses” such as hair salons, tailors, architects and florists that “use artistic skills when serving customers or clients.”...
This is a genuinely difficult case. I empathize with the people on both sides, and I think the legal interests are very hard to prioritize. I was disgusted by the NYT op-ed headline I saw this morning: "The Colorado Cake Case Is as Easy as Pie." What arrogance!

Part of that arrogance — the part that offends me the most — is the high-low distinction in art. I'm very interested is hearing whether the Supreme Court gets into the matter of setting Jack Phillips apart from "real" artists and devaluing his expression because it is in butter-sugar.

By the way, the NYT podcast, "The Daily," has an excellent, well-balanced episode on the case this morning. It includes an interview with Jack Phillips, and you hear Adam Liptak explain the legal issues in a straightforward way. He also goes on to speculate that Anthony Kennedy — who's distinguished himself as the author of the Court's gay rights cases — may vote for Phillips out of an urge to protect "the loser."


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