Attorney Roberta Kaplan is no stranger to the Supreme Court. She successfully argued lesbian widow Edie Windsor’s case against the Defense of Marriage Act in 2013, invalidating the main part of DOMA and bringing federal government recognition to same-sex marriages. Kaplan took some time to speak with The Advocate about the latest LGBT rights case before the justices — Masterpiece Cakeshop, Ltd., v. Colorado Civil Rights Commission, involving a baker who refused to make a wedding cake for a gay couple and was found guilty of violating the state’s antidiscrimination law. Masterpiece owner Jack Phillips contends he should have an exemption from the law because his faith-based opposition to same-sex marriage and his artistic expression in the form of cakes are protected by the First Amendment to the U.S. Constitution. Kaplan, founding partner of Kaplan and Co. LLP in New York City, shared her thoughts on Tuesday’s oral arguments; read a transcript of our conversation below.
The Advocate: What did you make of the arguments Tuesday, and what do you expect from the justices?
Roberta Kaplan: It appears there will be a closely divided court, and the majority will try to craft a narrow compromise between equal dignity and religious belief.
What do you think of the argument, made by U.S. Solicitor General Noel Francisco and by some right-wing pundits, that refusing to make a wedding cake for a gay couple is the same as a business owner refusing to facilitate hate speech?
I actually don’t think the opinion is likely to turn on that issue. When you buy an ice cream cake at Carvel for your kid’s birthday, it would be absolutely nutso for your kid to think Carvel was wishing him a happy birthday [a reference to a point made by attorney and law professor Walter Dellinger in a friend-of-the-court brief supporting Colorado in the case]. There is nothing inherently expressive [about the cake].
What about, say, a business that refused to print T-shirts for a white supremacist rally?
The shop has the right to not sell that shirt to anyone. [Phillips] could decide not to sell wedding cakes to anyone.
What are your thoughts on the concern raised by some justices, such as Stephen Breyer, that an opinion in Phillips’s favor could blow a huge hole in antidiscrimination law and possibly “undermine every civil rights law since year 2”?
I’m worried about that, as are many others, including, I think, the justices themselves. I remember my grandmother telling a story about driving through the South with other family members. From time to time on that trip, they would drive into a town and show up at the nearest hotel. At the check-in counter there would be a sign that said no Jews allowed. We are long past the point in this country to believe that is acceptable — for black people, for Jewish people, for Muslim people, or for gay people. I’m confident that we are there. I think the court has a difficult task in front of it. If they’re going to offer any accommodation at all to this baker, it’s going to have to be an incredibly narrow one.
Are there any lines of questioning that surprised you?
No. Not really. They asked questions about all the issues raised under the both free speech issues and religious freedom issues that we expected.
Were you at all troubled that Justice Anthony Kennedy, the key swing vote on the court, brought up the possibility that the Colorado Civil Rights Commission showed hostility toward religion?
I think Justice Kennedy was searching, as you’d expect him to, for a kind of narrow way to define the case. I think that explains his question. I highly doubt that the people who passed the civil rights law in Colorado were intending to be hostile toward religion. As they were saying, there are some civil rights laws that have religious exemptions, narrow, legit exemptions, and the Colorado law doesn’t. I think that was what he was getting at.
Justice Neil Gorsuch, who is the only Trump appointee, was he along the lines you expected as well?
Yeah. Again, there were no major shockers in terms of the kinds of questions and the kinds of things the justices said.
You expect this to be a 5-4 decision pretty much along the lines that we think of the court, liberals on one side, conservatives being the other, and Justice Kennedy being the decider?
I think that is very, very likely.
How did you feel about the federal government weighing in the side of the baker?
Well, obviously, I could not disagree more strongly with the position of the federal government here. There’s something kind of sadly ironic about the position being taken by the government, because the Department of Justice was created in large measure after the Civil War to enforce and promulgate the civil rights of the newly freed slaves throughout the South. And ever since that time the Justice Department has stood up for minority rights in this country time and time again. To have a Justice Department today that basically takes the position that gay people and their families are not entitled to public accommodation that everyone else enjoys is troubling.
I know it’s hard to predict what the court will do, but do you think that it may take up any other of these “license to discriminate” cases?
I don’t know, but I am counsel on one of those cases. We are counsel on the case about Mississippi House Bill 1523, which presents a far broader, in many ways, statute than any issue in the Masterpiece cake case. It’s a statute that creates three official religions, or three official religious beliefs, I should say, including that marriage is between a man and a woman. We have asked the Supreme Court to take that case, but the Fifth Circuit upheld that our plaintiffs did not have standing to challenge it [based on] the establishment clause [of the First Amendment, prohibiting governments from establishing a religion].
Yes, it said they had not yet been harmed by it.
For establishment clause purposes, the harm is the official endorsement of a religious belief, if you do not hold a specific religious belief, which is critically what the statute does. We have asked the court to take the case. I’m very hopeful that the court will, but I’ve been a lawyer long enough to know you’re not going to make a lot of money if you start to get into the business of gambling on what this court or what a specific court will or will not do.
A ruling in the Masterpiece Cakeshop case is expected in the summer.