"Commissioner Hess says freedom of religion used to justify discrimination is a 'despicable piece of rhetoric.'  Did the Commission ever disavow or disapprove of that statement?" — Justice Kennedy, U.S. Supreme Court, Dec. 5, 2017 oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

"Appellants later clarified their desired injunctive relief as removal or demolition of the Cross, or removal of the arms from the Cross 'to form a non-religious slab or obelisk.'" — American Humanist Association v. Maryland-National Capital Park and Planning Commission, 874 F.3d 195, 202 n.7 (4th Cir. October 18, 2017).

The Masterpiece Cakeshop case, which was argued before the U.S. Supreme Court this month, has garnered more media attention because it implicates same-sex marriage.  But another federal case, Maryland-National Capital Park and Planning Commission, is no less notorious.  During oral argument in the Maryland case in October, one of the federal Court of Appeals judges repeated a statement in the petitioner's brief requesting that a 40-foot-tall memorial Cross, viewable from the state highway and erected in 1925 to honor World War I heroes, either be demolished or the arms removed to form a "non-religious slab or obelisk."

If there were any doubts about the petitioners' hostility toward Christianity, the request to break the arms of the 40-foot-tall Latin Cross erases them.  The three-judge panel of the Fourth Circuit Court of Appeals left the question of what to do with the Cross to the federal district court upon remand, but shouldn't have ignored the hostility of the petitioners.  A Cross with the arms broken off would be highly offensive to large numbers of Christians viewing the monument.*  There is more going on here than just a neutral request that the government avoid supporting religious displays.

And therein lies the problem with Establishment Clause jurisprudence.  Far from being a "realization of state neutrality" toward religion, Establishment Clause challenges in the federal courts have become a means to "the establishment of a religion of secularism …."  School District of Abington Township v. Schempp, 372 U.S. 203, 313 (1963) (Stewart, J., dissenting).

And sometimes beyond secularism, into open hostility toward Christianity.  In the Masterpiece Cakeshop case currently before the U.S. Supreme Court, the facts showed that the Colorado Civil Rights Commission refused to penalize (1) an African-American cake artist for refusing to create a cake promoting white supremacy for the Aryan Nation, (2) an Islamic cake artist for refusing to create a cake denigrating the Quran for the Westboro Baptist Church, and (3) three secular cake artists for refusing to create cakes opposing same-sex marriage for a Christian patron.

And yet, the Commission ruled that Masterpiece Cakeshop, whose owner holds sincere religious beliefs opposed to same-sex marriage, was in violation of the state public accommodation law for refusing to make a cake to celebrate a same-sex wedding, although he is happy to create other items for gay and lesbian clients.  There was no dispute in the case that same-sex couples in the state have numerous commercial avenues for obtaining custom-designed wedding cakes and were not dependent upon the skills of Masterpiece Cakeshop.

Masterpiece Cakeshop is similar to a recent U.S. Supreme Court case, Burwell v. Hobby Lobby, 134 S.Ct. 2751 (2014), in which the Court granted a religious exemption from compliance with Obamacare's contraception coverage requirement to a business whose owners hold sincere religious beliefs against abortion (the required coverage includes forms of contraception that induce abortion, known as "abortifacients").

The business owner in Masterpiece Cakeshop propounded Free Exercise and Free Speech arguments, since the creation of custom-designed cakes implicates his speech as an artist.  However the oral arguments seemed to miss this main point, with the Justices repeatedly referring to the business owner as a "baker" rather than an "artist," although the baked cake is just the scaffolding beneath the artwork.  The speech occurs in decorating the cake, not in baking the cake, per se.  Cake decoration can be rather elaborate and, as with any piece of artwork, must qualify as speech.

While Justice Sotomayor criticized the term "artist" on the supposition that cakes are "made to be eaten," her hypothetical assumes that the medium alone is dispositive of whether the creation is "art" or "food"—an assumption that collapses when one considers that many artists work with chalk and pencil on destructible paper.  Nor is an artist whose artwork is reproduced tens of thousands of times on a magazine cover less of an artist because the work appears on paper and is intended to be consumed and discarded.

Nor does Justice Breyer's hypothetical assumption that the term "artisan" might be more appropriate than "artist" change the analysis.  A supposed "artisan" is no less entitled to exercise his or her freedom of speech than an "artist."  Perhaps the fact that Masterpiece Cakeshop is engaged in a commercial endeavor, from the Justices' perspective, disqualifies the speech for rigorous protection under the First Amendment.  (For instance, advertising, a form of commercial speech, requires only intermediate scrutiny of a content-based regulation of the speech.  See, e.g., Retail Digital Network, LLC v. Prieto, 861 F.3d 839, 848 (9th Cir. 2017) (citing Sorrell v. IMS Health Inc., 564 U.S. 552 (2011)).

However, there was no suggestion in Masterpiece Cakeshop that the Justices regarded the shop's activities as mere "commercial speech."  (In cases where "pure speech" is mixed with commercial speech, the appropriate scrutiny to be applied is strict scrutiny of the content-based regulation. See, e.g., Sorrell, supra, at 571 (citing Board of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 474 (1989)).  Further, it must be taken into account that, in modern times, artists have taken control of their destinies by becoming business owners and often work in media that are ephemeral and widely in demand.  For instance, if the demand is greater for wedding cakes than for gargoyles, an artist might choose buttercream icing as the medium rather than marble.

Masterpiece Cakeshop probably could create beautiful artwork in pottery, fashion design, jewelry making, etc., since the same skill set is required.  As a result, the oral argument at the Supreme Court was most cringe-inducing when the Justices repeatedly questioned whether "art" is involved at all merely because of the medium employed by the artist and when the Justices repeatedly referred to the artist as a "baker," which misses the point.  One thing the Justices shouldn't miss is the name of the business—"Masterpiece Cakeshop."  The artist named the shop long before the legal controversy arose over same-sex marriage.  The question is whether an artist whose activity is highly individual, unique, and expressive must be compelled to express a viewpoint that he disagrees with on sincerely held religious grounds, when there are numerous cake shops that will produce the same item without complaint and would compete for the business.

A remark by one of the Colorado commissioners, who called the artist's religious objection a "despicable piece of rhetoric," caused Justice Kennedy to comment during the Supreme Court oral argument, "Suppose we thought there was a significant aspect of hostility to a religion in this case. Could your judgment stand?"

Justice Gorsuch disapproved of an assertion by a second commissioner in Colorado's proceeding who alleged that "if someone has an issue with the laws impacting his personal belief system, he has to look at compromising that belief system …"

Justice Alito emphasized that the record showed "what appears to be a practice of discriminatory treatment based on viewpoint…. [T]he Commission had before it the example of three complaints filed by an individual whose creed includes the traditional Judeo-Christian opposition to same-sex marriage, and he requested cakes that expressed that point of view, and … there were bakers who said no, we won't do that because it is offensive.  And the Commission said:  That's okay.  It's okay for a baker who supports same-sex marriage to refuse to create a cake with a message that is opposed to same-sex marriage.  But when the tables are turned and you have the baker who opposes same-sex marriage, that baker may be compelled to create a cake that expresses approval of same-sex marriage."

Justice Kennedy lectured that "tolerance is essential in a free society.  And tolerance is most meaningful when it's mutual.  It seems to me that the state in its position here has been neither tolerant nor respectful of [the artist's] religious beliefs."

Such comments by the Justices during the Supreme Court oral argument suggest that the remarks of the commissioners in the Colorado proceeding, which express unconstitutional hostility toward a religion, could be dispositive.  The religion clauses of the First Amendment state, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof …."

As for the artist's Free Speech claim, there can be no doubt that forcing a Christian artist to produce artwork that celebrates a phenomenon that the Bible denounces in the strongest terms would be heavy-handed.  While it is unfortunate that discrimination against same-sex couples exists, it would be wrong to penalize an artist who doesn't actually discriminate against same-sex couples since he is happy to create other items for gay and lesbian clients, just not wedding cakes.  The same-sex couple argued that a decision for the artist might be misused by prejudiced business owners to deny services to different types of minorities, but the vast majority of small business owners won't discriminate, because it doesn't make financial sense.  Masterpiece Cakeshop isn't a multinational corporation.  Large-scale damage to society could occur when large corporations create hostile work environments for, or discriminate against, minority and female employees, for example, but to extrapolate the same type of damage here is absurd.  The Supreme Court refused such extrapolation in Hobby Lobby and should refuse it with Masterpiece Cakeshop

The hostility of the commissioners is misplaced here and must be redirected toward those individuals who genuinely discriminate against same-sex couples, rather than those who respectfully disagree with the lifestyle on sincerely held religious grounds. 

* "For the message of the cross is foolishness to those who are perishing, but to us who are being saved, it is the power of God."  1 Corinthians 1:18.