Taking Laughter Seriously at the Supreme Court

By Jacobi, Tonja; Sag, Matthew | Vanderbilt Law Review, October 2019 | Go to article overview

Taking Laughter Seriously at the Supreme Court


Jacobi, Tonja, Sag, Matthew, Vanderbilt Law Review


Elene Kagan: Why is there no speech in . . . creating a wonderful hairdo?

Kristen Waggoner: Well, it may be artistic, it may be creative, but what the Court asks when there's -

Elena Kagan: The makeup artist?

Kristen Waggoner: No . . .

Elena Kagan: It's called an artist. It's the makeup artist. [LAUGHTER].1

Noel Francisco: . . . people pay very high prices for these highly sculpted cakes, not because they taste good, but because of their artistic qualities. I think the more important point -

Neil Gorsuch: In fact, I have yet to have a . . . wedding cake that I would say tastes great. [LAUGHTER].2

David Cole: . . . that is not necessary to decide this case, but . . . in a future case that involved physical participation in . . . a religious ceremony that an individual deeply opposed, that a court . . . might create new doctrine and draw a new line and say, no . . . . We're going to make an exception

Stephen Breyer:

How do we do that? Because, you know, we can't have 42,000 cases, each kind of vegetable - [LAUGHTER].3

Introduction

When the Supreme Court addressed whether a law sanctioning a baker for his refusal to make a wedding cake for a gay couple was contrary to the First Amendment in Masterpiece Cakeshop v. Colorado Civil Rights Commission,4 the courtroom erupted into laughter seven times during the extended ninety-minute oral argument. One episode was inspired by Justice Kennedy inadvertently stumbling between the words "case" and "cake."5 But in all six other episodes, there was a serious point to the Justices' quips and comments that provoked the courtroom gallery into laughter. As seen above, Justice Kagan was illustrating the potential absurdity of Petitioner's argument that making a wedding cake was a personal statement demanding free speech protection. Kagan asked the serious question of how such claims could be limited by posing the seemingly absurd question of why hairstylists should not command the same respect.6 Justice Breyer made a similar point about the potentially limitless distinctions the Court would be asked to make if it ruled in favor of the baker by resorting to the hyperbole of the Court deciding "42,000 cases, each kind of vegetable." Justice Gorsuch, in contrast, was emphasizing that wedding cakes are not made or consumed for their taste but for their symbolism and artistry, a jest that worked in Petitioner's favor. It is unsurprising, then, that Justice Gorsuch ultimately joined the majority opinion, which, while dodging the question of whether there is an exception to antidiscrimination principles for genuinely held religious beliefs,7 upheld Petitioner's claim in this case. In contrast, Justice Kagan's concurring opinion, which Justice Breyer joined, explicitly narrowed the determination to one of discrimination by a state actor against Masterpiece and read the majority opinion as embracing the conclusion that a state law "can protect gay persons."8 The way the Justices used humor in the Masterpiece Cakeshop oral argument is telling. Liberal Justices used humor to engage in a dialogue with Petitioner and express their skepticism, while conservative Justices did the same with Respondent.

We are choosing to define "dessert" in the broadest possible terms. This means that gay rights will not be applicable in cases of ice cream, sorbet, decorative cookies, or any other post-meal treats, be they sweet or savory. Tiny glasses of port and cheese plates will also fall under the umbrella of "dessert" unless they are consumed before the entrée and defined specifically as "aperitifs."

Indeed, the following Term, the Supreme Court had to decide whether to rule on the same issue as applied to a florist-Arlene's Flowers, Inc. v. Washington, 138 S. Ct. 2671, 2671 (2018) ("[R]emanded . . . for further consideration in light of Masterpiece Cakeshop.").

This pattern raises some questions. First, is Masterpiece Cakeshop representative, or is there something special about the facts of that case (or cake? …

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