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Justices Ginsburg and Kagan Ask About the Artistry of Wedding Cakes

“It’s the makeup artist.”The courtroom audience, which is usually sedate, roared with laughter.Kagan wasn’t done. What about the chef who cooked the wedding dinner?Not an artist, Waggoner said. “Whoa!” Kagan replied. “The baker isengaged in speech, but the chef is not engaged in speech?” Kagan’s point was obvious and difficult to refute. People in manybusinesses do work that involves some element of creativity andexpression. If the Court were to rule that cake bakers had a FirstAmendment right to discriminate, what was to stop virtually any retailbusiness with religious owners from exempting itself fromanti-discrimination laws? Justice Stephen Breyer cut through the comedyto make this serious point. “The reason we’re asking these questions isbecause obviously we want some kind of distinction that will notundermine every civil-rights law, from the year one . . . includingeverybody who has been discriminated against in very basic things oflife, food, design of furniture, homes, and buildings.” Waggoner and Noel Francisco, the Solicitor General, didn’t do very wellin trying to draw the distinction that Breyer was looking for.

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