Although the opening arguments for Masterpiece Cakeshop v. Colorado Civil Rights Commission (transcript .pdf here) included a plea for religious freedom, that point got lost in articles about Tuesday’s historic hearing in front of the U.S. Supreme Court.
It’s true that the plaintiff’s attorney, Kristen Waggoner, barely got out one paragraph of her intro before justices began interrupting her with questions about cakes and compelled speech.
It’s also true that covering a Supreme Court hearing (I’ve done it two or three times) is like covering a knife fight between 10 participants (nine justices and the hapless attorney before them). It takes discipline for media scribes to remember the main thing is the main thing; in this case, whether a believer can be forced by the state to give a message that contradicts his or her religious convictions.
GLAAD, the gay-rights organization that monitors coverage of homosexuals by the media, saw that “main thing” as such a threat, it sent a note to major media outlets, urging them to dump terms like “religious freedom” and “religious liberty” for “religious exemptions.” Read about their directive on Poynter.org and see one New York Times opinion piece that obeyed this instruction to the letter.
(Tell me: What if a conservative group had sent out a similar missive to mainstream journalists? The Poynter piece, by the way, didn’t include any quotes from media experts who find it problematic that an activist group feels it can tell journalists what to write.)
Fortunately, reporters generally ignored GLAAD's directive. We will start with the Denver Post, the hometown newspaper for both parties in this suit which had a headline that reflected how Kennedy asked “sharp questions” from both sides. It began with a very static lede:
WASHINGTON -- The U.S. Supreme Court on Tuesday heard arguments in a Colorado case about a same sex-wedding cake that ultimately could determine where the legal system draws the line between discrimination and religious freedom.
The legal fight stems from the refusal of Lakewood baker Jack Phillips in 2012 to make a wedding cake for fiancés Charlie Craig and David Mullins. Phillips argues he shouldn’t be compelled to violate his religious beliefs by creating a custom dessert for the couple; they argue they are being discriminated against because of their sexual orientation, which is protected by Colorado law.
As any journalism prof would say, tell us in the lede what happened. The Post said very little about the religious aspect of the case until the very end, when it included one paragraph from Phillips’ supporters, then four paragraphs about a Lutheran minister dressed in shorts and a giant Bible costume who supported the gay couple.
Odd, to say the least.
Media types varied on who ended up on top. The Los Angeles Times, in its opening lines, clearly thought the baker’s side had lost.
The Supreme Court gave a somewhat skeptical hearing Tuesday to a Colorado baker’s claim that he had a free-speech right to refuse to make a wedding cake for a same-sex couple, despite a state civil rights law that bans such discrimination.
Several justices questioned why a baker's work could be considered speech and how the court could set a legal rule that would allow some businesses involved in "expressive" work, but not others, to refuse to serve certain customers.
What about a jeweler, a hairstylist or a makeup artist, asked Justice Elena Kagan. “How do you the draw the line?”
But the liberal website Think Progress declared victory for the baker.
There’s no way to sugarcoat the oral arguments in Masterpiece Cakeshop v. Civil Rights Commission, a landmark Supreme Court case asking whether a religious baker who objects to same-sex marriages is allowed to defy Colorado’s anti-discrimination law. Justice Anthony Kennedy, the key swing vote and the only conservative on the Court who has shown much sympathy for LGBTQ rights, appears almost certain to side with Jack Phillips, the baker in this case.
Though there is a chance that Kennedy could side with Phillips on narrow grounds, Masterpiece Cakeshop could potentially give religious conservatives sweeping power to engage in discrimination.
Also on the left, see this rather blunt summary:
The Nation also thought Kennedy’s grilling of Colorado Solicitor General Frederick Yarger was a hat tip toward conservatives, announcing in a headline that Kennedy “appears ready to undo his own legacy on LGBTQ rights.” Of course, Kennedy also has a legacy on free speech and the First Amendment, but never mind.
Back to the Los Angeles Times, religion did come up eventually in its piece:
During the second half of the argument, it was clear that Kennedy was equally troubled by what he saw as religious bias against Phillips for his conservative Christian beliefs… He was upset by a statement from one member of the Colorado Civil Rights Commission that was cited in the legal briefs… Kennedy read part of the statement and said it showed a "hostility to religion" on the part of at least one commissioner.
The New York Times version, which was enormously readable and well-written, also saved the religious beliefs angle until the end:
Toward the end of the argument, Justice Kennedy appeared to reject an argument from Mr. Cole, the couple’s lawyer, that Mr. Phillips had discriminated against the couple based on their identity as gay men.
Instead, Justice Kennedy seemed to embrace a distinction pressed by Mr. Phillips’s lawyers -- that Mr. Phillips has nothing against gay people but objected to same-sex marriage because it was at odds with his religious beliefs.
“It’s not their identity,” Justice Kennedy told Mr. Cole. “It’s what they’re doing.”
The Wall Street Journal was the only publication I saw that mentioned three Colorado cases that were mirror opposites of the Masterpiece Cakeshop case, all of which weren’t punished in any way by the state.
Justice Samuel Alito turned the issue around, suggesting that the Colorado commission had singled out Mr. Phillips’s beliefs for unfavorable treatment. He noted that the commission declined to take action against three other bakeries that refused to make cakes with messages hostile to same-sex marriage.
“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,’” Justice Alito said. “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.”
Confused by it all? Read this essay from Vox, which explains why this isn’t simply another anti-gay discrimination case. Despite the use of “religious liberty” scare quotes, it otherwise fills the bill by explaining it all.