Let them (not) eat cake

Cake is not often the cause of constitutional controversies. Yet, the US Supreme Court and the UK Supreme Court are – as we write – resolving cases where mere cake purchases have pitted causes of conscience against rights of public accommodation. And the two cases are not just interesting in their substance, for they have the potential to spotlight another contested subject: the extent to which courts around the world can and should ‘listen’ to each other.

Before we get to cutting the cake, it is perhaps useful to briefly set out where these two courts might fall on the whole question of flirting with each other on any substantive legal issues.

For its part, the US Supreme Court does occasionally nod to cases in foreign courts. One thinks of the court’s reference to ‘values we share with a wider civilization’ in Lawrence v Texas, where it leant on some precedents from the European Court of Human Rights (e.g. Norris v. Ireland, 142 Eur. Ct. H.R. (1988) to invalidate anti-sodomy laws. However, in truth the practice has always divided its justices. As the title of his recent book makes clear (the Court and the World) Stephen Breyer seems quite happy with inter-curial cosiness, for – as he says – ‘judicial awareness can no longer stop at the border’ (p.4). In contrast, the nostrils of his late colleague Antonin Scalia often flared at the idea. In his memorable dissent in Lawrence he heavily criticised the court for relying on foreign law and repeated the refrain that ‘this Court . . . should not impose foreign moods, fads, or fashions on Americans.’

On the other side of the ocean, the UK Supreme Court (and its previous incarnation the Appellate Committee of the House of Lords) rarely seems troubled by this debate. To be mischievous, if I were at a boozy legal luncheon I’d venture that this is because the Brits, as practical creators of the common law, are far too self-assured to worry that their judicial egos could in any fashion be dented by acknowledging the existence of legal experience outside the UK. Less bold is the simple reality that UK courts, as a matter of daily routine, have to apply law from at least two ‘foreign’ courts : the European Court of Justice and the European Court of Human Rights. Indeed, in the cake case currently before them, the UK judges must decide whether the rights of the bakers are protected under Article 9 and/or 10 of the European Convention on Human Rights (the “Convention), separately or together with Article 14 of the Convention. Faced with these layers of law above them, the UK courts generally get on with it.

The Cases

In 2012 the owner of Masterpiece Cakeshop Inc, Jack Phillips declined to design and create a wedding cake for a same-sex couple, Charlie Craig and David Mullins. After the Colorado Civil Rights Division found discrimination under the Colorado Anti-discrimination Act, the Colorado Court of Appeals affirmed in August 2015. The Supreme Court granted certiorari in June 2017.

In 2014, Gareth Lee ordered a cake with the message “Support Gay Marriage” in icing. He paid £36.50 for the cake, but the devout Christian owners of Ashers Bakery refused to make it. In October 2016, the Court of Appeal in Northern Ireland held that the bakery had discriminated against Mr Lee on grounds of sexual orientation, flouting the Equality Act (Sexual Orientation) Regulations.

The UK Supreme Court agreed to hear the appeal. The case is before five judges: Lady Hale, Lord Mance, Lord Kerr, Lord Hodge, and Lady Black.

Cross-Atlantic Exchange

It must be said that the UK parties have taken far greater interest in Masterpiece than the other way around. Ashers was not mentioned at oral argument before the US Supreme Court on 5 December; of course this is hardly surprising as time was sliced thinly between four advocates. (For comparison, in Belfast the Ashers case was spread across two days in almost 9 hours argument). As for the American briefs, I have not done an exhaustive search of all the amicus briefs filed but there is certainly no mention of Ashers in either the main briefs by respondents Charlie Craig and David Mullins or petitioners Masterpiece Cakeshop Ltd.

In contrast, several of the advocates in Ashers Bakery cited US case law in their presentations at the UK Supreme Court. Indeed, on day two of the proceedings, the Attorney General of Northern Ireland John Larkin spent several minutes leaning on US precedents, especially those touching on the First Amendment. In making the general point that the right to free speech encompassed a right to refuse to adopt certain messages, Mr Larkin referred to three US cases. The first was Wooley v. Maynard, 430 U.S. 705 (1977) (where the Supreme Court held that New Hampshire could not compel drivers to carry the license plate with the state motto ‘Live Free or Die’ as it offended the petitioners’ religious convictions). He also cited Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 (1995), a case in which the court held that private organizations may not be state-compelled to include groups in public marches that did not share their message, and Klein, dba Sweet Cakes by Melissa, v. Oregon Bureau of Labor and Industries, another cake case from the Oregon Court of Appeals.

Interestingly, Larkin also referred to, and quoted from, the brief filed by scholars of the First Amendment (Brief of Floyd Abrams et al.) in Masterpiece, which seemed to pique the interest of Lady Hale. She called for special mention the fact that Robert Post signed onto that brief.  At the end of these discussions, Lord Mance wondered when Masterpiece would be decided – obviously at the bake of his mind.

So far, the UK is getting douze points for taking judicial notice of their American brethren.

The Results

A result is expected in Masterpiece before or at the end of June.  In her closing words in the Ashers case, Lady Hale stated that it was a ‘complex and difficult case’ to which ‘people will not expect the answer anytime soon.’ In light of this timeline, the real question then is what influence, if any, the result in the earlier delivered Masterpiece will have on the UK court.

There is no doubt that on certain prickly social and moral questions the UK Supreme Court sometimes finds persuasive authority in US precedents. For example, the decisions by the House of Lords and more recently the UK Supreme Court have closely tracked and cited extensively US judgements on assisted dying (see Airedale NGHS Trust v. Bland [1992] UKHL 5 and R (on the application of Nicklinson and another) (Appellants) v Ministry of Justice) [2014] UKSC 38). However, the persuasiveness of Masterpiece may be diminished in Ashers case, not least because the legal terrain is highly uneven. The most fundamental difference lies here: the question on which the US Supreme Court granted review implicates an enumerated right of the US constitution; the UK of course has no such provision, indeed it has no written constitution at all. In fact, the main constitutional issue in the Ashers case has nothing to do with cakes at all, but concerns whether the discrimination legislation is compatible with devolved powers in Northern Ireland.

The nature of the result and – dare I venture – even the authorship in Masterpiece will also determine how quote-worthy it becomes for the UK judges. Many of the judges on the UK Supreme Court panel are nowhere near as ‘conservative’ as judges on the US court, such as Samuel Alito and Clarence Thomas. And a voice inside tells me that if a guest cancelled attending a dinner party hosted by Lady Hale, she would not immediately choose Neil Gorsuch as her favourite replacement from among the nine either. So let’s imagine Masterpiece ends up in Alito’s hands and he delivers an opinion in the style of his Hobby Lobby output. Out of courtesy rather than comity, I can see a majority of UK judges making a polite passing reference to the case – and then moving on quickly with a collective cough.

In the end, I predict that the UK Supreme Court will eventually affirm the judgement of the Court of Appeal and hand victory to the cake purchaser in Ashers. As a result, if Kennedy has the case in Masterpiece and produces one of his heart-warming ‘sweet-mystery-of-life’ opinions, it seems plausible that the main opinion in Ashers (if there is one) will be inspired to pay it close heed. This may be even more likely if Lady Hale writes the majority judgement, for she authored the ground-breaking (if not ground-baking) case in Bull v Hall, in which refusal of a double room to a gay couple by the Christian owners of a hotel was deemed discriminatory.

However, it bears noting that whatever the result and whosoever the author in Masterpiece, quotability of it in the UK case is at least increased because the British court most often delivers seriatim opinions. Indeed, there could conceivably be five separate writings in the Ashers case, which makes it highly likely that at least one judge will ice their judgement with interesting drops from  Masterpiece.

2 thoughts on “Let them (not) eat cake

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