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Attorney discusses Cakeshop case at WBAI event
Special to the online edition of Windy City Times
by Liz Baudler
2017-12-12

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Based on the transcript from the U.S. Supreme Court's Masterpiece Cakeshop deliberations earlier that day, Lambda Legal Senior Council and former National Marriage Project Director Camilla Taylor had a strong opinion.

"Today was not a very good day for LGBT rights," Taylor explained to a crowd at Charles Schwab at 430 N. Michigan Ave. Schwab and the Women's Bar Association of Illinois ( WBAI ) hosted Taylor's conversation with her colleague, Lambda Legal Regional Director Christopher Clark, on Dec. 5—the perfect chance to get Taylor's first reaction to the Masterpiece Cakeshop arguments.

Taylor's "glass half-empty" feeling seemed to based strongly on statements made by Justice Anthony Kennedy, the author of all the major favorable gay-rights decisions but also a notorious swing vote. According to Taylor, the Masterpiece Cakeshop case had brought up two issues—a First Amendment issue of compelled speech ( by making a cake for a gay couple, the baker was expressing acceptance of a relationship ) and the free exercise of religion.

At some points, Kennedy's line of question seemed to give credence to the free exercise of religion argument, which Taylor said has been "slapped down" many times before. While Kennedy has been known to bring up principles to lay groundwork for future objections, an audience member pointed out, Taylor countered that he has so far often been sympathetic to religious beliefs, as in his decision in the Hobby Lobby case.

Taylor was surprised Masterpiece Cakeshop had even gotten to the court, considering all of the lower court decisions had been congruent with each other on the issue and in favor of the gay couple. "Usually the Supreme Court weighs in when there's a brewing controversy," Taylor said.

Representing the baker was a group called Alliance Defending Freedom, which Taylor claimed had a budget three times the size of Lambda Legal. Taylor described their efforts as "chipping away" at the rights that the marriage case Obergefell v. Hodges granted.

"I think it is a cynical abuse of this moment," Taylor said, when asked exactly why the case might have gotten heard, remarking on the changing cultural climate created in part by marriage equality.

The audience was ready for Taylor to explain the details of what she'd heard in the proceedings. When someone asked about whether the baker had objected in particular to writing a message on the cake, Taylor explained that the couple and the baker never even got to that point. The issue involved was the definition of artistry, and what kind of artistry would constitute protected speech. Based on that metric, some of the justices pointed out that certain kinds of service providers, makeup artists and architects would not be as protected, Taylor said.

"It will carve a hole into the nondiscrimination clauses that will cause ligition for perhaps decades," she remarked.

An audience member asked about new Supreme Court justice Neil Gorsuch's participation in the Masterpiece arguments. "He doesn't even acknowledge Obergefell," Taylor remarked, based on an earlier ruling about same-sex parents in Arkansas earlier this year to which Gorsuch penned a stinging dissent. Yet overall, Taylor seemed to have an optimistic long view of the situation, partly because prior litigation about discrimination and race created a compelling argument to apply that standard to LGBTQ rights.

For their part, Lambda Legal filed a brief filled with the voices of those who had suffered anti-LGBT discrimination, including a case in Illinois of a taxi driver kicking out a gay couple on the shoulder of the expressway, Taylor said, and pointed out that Justice Sotomayor in particular was very interested in those stories.

"We are going to win this eventually, it's just a matter of what kind of setback we'll be dealt in the next year," Taylor said.

Taylor also discussed other ligation that Lambda Legal is working on, including a case she hopes to have the Supreme Court hear involving employment discrimination. The 7th Circuit has ruled that Title VII prohibits discrimination on the basis of sex, while the 11th Circuit disagrees. Even federal agencies have opposing interpretations of Title VII, with the Equal Employment Opportunity Commision backing the 7th Circuit decision while the Justice Department disagrees.

"There's clearly a mess that the Supreme Court has to clean up," Taylor said.

When asked about the parallels to other civil-rights movements, Taylor spoke of the importance of both taking inspiration from and supporting other causes. "There are all sorts of different fights that if they lose, we lose," Taylor said.

And she remembered a marriage equality opponent a few years ago saying it was "time to end the culture wars" and wanting some sort of social compromise as people had to adjust to the new reality of same-sex marriage. Taylor very much disagreed.

"The culture wars are over—we're winning them," Taylor said. "We don't have to compromise."


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