Oral Arguments Review: Week of December 4, 2017

On Tuesday, the Supreme Court heard oral argument in one of the biggest cases of the Term: Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. In this case, a baker who makes custom wedding cakes refused to provide a cake for a same-sex couple celebrating their marriage. The Colorado Civil Rights Commission found that he had violated the state’s anti-discrimination law. The baker appealed to the Supreme Court, alleging that he was forced to engage in “compelled speech” and that his free exercise of his religion was improperly burdened, both in violation of the First Amendment.

The argument, which lasted almost 90 minutes, involved extensive discussion about the scope of the right that the baker was claiming. To the extent that he claimed to be engaging in expressive conduct, Justice Kagan pressed his attorney about whether make-up artists, hair stylists, chefs, and florists would also be covered by his theory. Surprisingly to many, including Justice Breyer, when Justice Alito asked whether architectural design was expression protected by the First Amendment, the baker’s lawyer said no. The Justices and attorneys also discussed whether race discrimination could be justified on religious or free expression grounds, a position that both the baker’s attorney and the United States government, which appeared to support the baker, attempted to distinguish.

There has been an enormous amount of commentary about this case and the argument. David Savage of the Los Angeles Times explains why a 1990 majority opinion written by Justice Scalia, Employment Division, Department of Human Resources v. Smith, makes the free exercise of religion claim particularly challenging for the baker. (In Smith the Court held that there are generally no free-exercise exemptions from compliance with generally applicable laws.) A video of a “spirited” debate between the Cato Institute’s Ilya Shapiro and the NAACP Legal Defense and Educational Fund’s John Paul Schnapper-Casteras can be found here. Shapiro and Schnapper-Casteras filed amicus briefs on opposite sides of the case on behalf of their respective organizations. Commentary from the National Catholic Register is here and from Craig Konnoth, a University of Colorado law professor, here.

Another high-profile case was argued on Monday, December 4. Christie v. National Collegiate Athletic Association, as ISCOTUSnow explained last week, the key issue involves Congress’s ability to prevent states from deregulating sports gambling. Ilya Somin argued in a piece entitled “Place Your Bets on Federalism,” at the Washington Post’s Volokh Conspiracy that the argument went well for New Jersey, which wanted to legalize some gambling. And the sports media also continues to cover the case. CNN reports here, noting that Governor Chris Christie himself sat in the front row during the argument.

Audio and transcripts arguments in Christie, Masterpiece Cakeshop, and the other, less high-profile cases from last week —Rubin v. Islamic Republic of Iran, Murphy v. Smith,  and Marinello v. United States — can be found oyez.org. Descriptions of these cases can be found here.

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