Inside the U.S. Supreme Court this week for the oral arguments for Masterpiece Cakeshop, Ltd v. Colorado Civil Rights Commission, I couldn’t help but look at Justice Neil Gorsuch and imagine how things would be if Merrick Garland were rightly sitting in that chair.
Had Republicans not stolen that seat, refusing a vote on President Obama’s nominee for almost the entirety of his last year in office and allowing Donald Trump to put Neil Gorsuch ― an ideologue on the issue of “religious freedom” ― on the court, we would not be in this dangerous predicament.
That is, we’d not be once again worried about a wavering Justice Anthony Kennedy, this time about the issue of whether or not a business open to the public can bar service to gay, lesbian, bisexual or transgender people based on their religious beliefs.
It was stunning to many people that the Supreme Court even took up the case of Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, who refused, on religious grounds ― claiming a violation of First Amendment rights ― to make a cake for gay couple, Dave Mullins and Charlie Craig, who came in to buy a wedding cake. Other similar cases in states with laws barring discrimination against LGBT people in public accommodations had been rejected for review by the high court after lower courts ruled against the businesses.
But there we were, with Gorsuch on the court and with Justice John Roberts seeming to be squarely with Gorsuch and the conservatives. This, even though some legal scholars, looking at his prior decisions, noted Roberts has been open to regulating speech when it comes to civil rights law. But that didn’t seem to be the case yesterday from his questioning. And Kennedy, as many have pointed out, appeared to express sympathy ― and harshness ― for both sides.
Justice Kennedy has been the court’s leader on gay equality, writing the decisions in landmark cases striking down sodomy laws, ruling the Defense of Marriage Act unconstitutional, and of course the Obergfell marriage equality ruling in 2015.
David Cole, of the American Civil Liberties Union, who represented the gay couples and was peppered with hard questions about religious liberty from the conservative justices, told me after the proceedings that he thought the arguments largely went well.
Well, that’s how it goes in the Supreme Court, you peppered by you with questions,” he said of the conservatives justices who pressed him. “But I think…