As our Policy Report noted last year, Cato is the only organization in the country that has gone to court to defend both one’s right to marry a person of the same sex and one’s right as a businessperson to join or not join as one chooses in assisting in celebrating a same‐sex wedding. We’ll be hearing a lot more about that second issue over the coming year, because this morning the Supreme Court agreed to hear the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case presents the issue “whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.”
Cato scholars and commentators have written about this set of issues for years, including, to name a few, David Boaz (“The solution to injustice is never to reverse the injustice”), Roger Pilon (history of free association and public accommodations laws), Ilya Shapiro (“private individuals should be able to make their own decisions on whom to do business with and how—on religious or any other grounds”), Robert Levy (“Forcing private parties to serve gay weddings is a higher order of coercion than forcing private hotels and restaurants to provide rooms and food to black—or gay—travelers”), Jason Kuznicki (“The market doesn’t care, and that’s a wonderful thing”), Emily Ekins on the polling data on a divided public, and David Lampo (different legal issues at stake than in same‐sex marriage cases). Cato filed an amicus brief in the parallel (alas unsuccessful) Arlene’s Flowers case involving Washington florist Barronelle Stutzman. I’ve written about the cake and flowers cases many times at Overlawyered (as well as about other vendor cases involving meeting halls and so forth), and have delved into the collateral damage to civil liberties seen in enforcement actions like that of Oregon in the Melissa and Aaron Klein (Sweet Cakes by Melissa) case.
A second ruling this morning, while likely to get less attention than the Masterpiece Cakeshop certiorari grant, offers clues on the wholly separate issue of how the holdings of Obergefell and Windsor are faring at the Court. The answer seems to be just fine. In Pavan v. Smith, the justices summarily reversed the Arkansas Supreme Court, which had declined to order an amended birth certificate issued to a lesbian couple on the same terms on which the state would issue such a certificate for a child born via donor reproduction to an opposite‐sex couple. Chief Justice Roberts joined the five justices who had been in the Obergefell majority, while Neil Gorsuch, joined by Justices Thomas and Alito, wanted the case argued. My quick take: while Gorsuch et al. offered reasonable‐sounding grounds for slowing down and taking a look at the details of the Arkansas dispute, the Court is determined to disallow what it sees as any defiance of Obergefell or attempt to chip away at it, and read the Arkansas high court as having tried that.
Notably, Gorsuch in his dissent took a legal technician’s cool tone that diverged sharply from what one might have expected from the late Justice Scalia: he refrained from zingers at the majority’s expense, stayed far away from culture‐war implications, and emphasized that the dispute that might have been aired was over how best to implement Obergefell, not whether to retreat from it. Some voices on the traditionalist sidelines have urged the Court’s conservative wing to wage rhetorical war against Obergefell and Windsor so as to set up an eventual overruling of those decisions. But not a single justice took that approach today. A new Pew survey, incidentally, confirms that opposition to legal recognition of same‐sex marriage has extended its historic decline, and is now in a minority even among Republicans.
