A few days' passing and thorough reading of the oral argument transcript for Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission leave me less optimistic than commentators such as Amy Howe at Scotusblog and David French at National Review.  While it was heartening that Justice Kennedy called out one of the Colorado civil rights commissioners for a statement apparently expressing animus toward religion, with the chief justice going so far as to suggest that this necessarily tainted the court's earlier ruling against Jack Phillips, and Justice Alito cynically pointing out that none of the other commissioners disavowed the commissioner's unseemly statement then or has since, still, the line-drawing the conservative justices seemed to be searching for remained fuzzy.

Would a ruling in favor of Phillips gut civil rights protections, as opponents relentlessly and hyperbolically argue?  It wouldn't.  The conservative justices seemed to know that it wouldn't.  Yet no one could really say how the ruling could be fashioned to prevent it. 

If the court is going to hang Phillips's protection on free speech, that potentially sweeps with a broad brush.  It lays Phillips's position open to the repeat attack that bigots can use religion as a pretext to discriminate against protected groups.  It also opens the door to run-of-the-mill craftspeople who wish to avoid compliance with anti-discrimination laws by hiding behind claims of communicative conduct.  But as the Justice Department's General Francisco pointed out, the solution is not to shun new adaptations in the law; it is to figure out how to make "the cut" that all First Amendment cases must initially make.

To that end, one clear difference here from all the hypotheticals with which Justices Ginsburg and Sotomayor besieged Kristen Waggoner, from the Alliance Defense Fund, is this: it's the combination of deeply held religious beliefs and the specific performance in the creation of unwanted messaging that distinguishes Phillips's cause.  It is their tandem significance – religion and speech as a conduit for the specifically tailored, creative expression of sincere convictions – that evokes our outrage at the state's coercion.  That is why the indignation comes from not just religious supporters, but also those vitally attuned to language, visual and literal, in their commercial endeavors.  Such people are most often creatives.

Unfortunately, chaotic attempts at hard line-drawing between the liberal justices and Ms. Waggoner and General Francisco failed to distill these unique characteristics of the case into the abstract rule that Justice Gorsuch was fairly begging for.  The attempts culminated with a question by Justice Alito about architecture, to which Ms. Waggoner, under pressure to answer, said no, buildings would not qualify as implied speech under their theory.  Justice Alito expressed amazement that a cake would be covered, but the "Laurentian Steps" (by Michelangelo) would not be. 

This torturous misdirection compounded the initial wrong turn.  Checklists shouldn't be the point.  Even copyright law recognizes distinctions between standard functional elements of a building, which cannot be copyrighted, and distinctively individualistic features, which can be.  It isn't a stretch to say that if the latter are suffused with deeply held values – as, say, in the work of an architect like Tadao Ando – it doesn't matter what category the work falls into.  Its special commission should be left to the discretion of the creator or speaker.  Expressive conduct of a high order can be a kind of secular religiosity.  

Coming up, then, with an organizing principle should have been both easier and more subtle than Waggoner and Francisco scrambled to suggest.  If intellectual property law (whose foil is the First Amendment) can draw distinctions between mundane originality and the type of work that carries a personal message, work that is even imprinted with the "beingness" of the message's author, then why not here?  Indeed, it is hard to understand why, beyond an abbreviated mention of Mastrovincenzo v. the City of New York, Waggoner and Francisco didn't advert more to the Second Circuit's sophisticated discussion of commercial wares with a "dominant expressive purpose" in the context of their immunity from government regulation in this New York street vendor case.  Instead, the discussion degenerated into jokes about whether food, because of its impermanence, could be "art."  What about Navajo sand paintings?

Part of this failure to import a more graduated First Amendment approach might have stemmed from a giant stumbling block the respondents put in the way of traditional analysis.  It was uncovered by Waggoner toward the end of her speaking time.  She pointed out that however much the Court might struggle to demarcate the line between conduct and expressive conduct, or art and speech, or communicative and utilitarian objects, when all is said and done – and we know this to be true from their rhetoric – the other side doesn't care a fig about any of it:

What's deeply concerning is that [protected expression] is not the theory that Respondents are submitting to this Court today.  They believe that they can compel speech, of filmmakers, oil painters, and graphic designers in all kinds of context.

Forget the niceties.  Forget the unavoidable First Amendment inquiries into what type of speech is at issue.  Entrust the nuances of heartfelt belief to a state agency, which will control everybody, because, of course, everybody (read: religious conservatives) at his core wants solely to act on his basest instincts to discriminate against and harm the dignitary interests of gays.  Sound familiar?

For their part, Colorado solicitor-general Frederick Yaeger, on behalf of the Commission, and ACLU lawyer David Cole for Craig and Mullins maneuvered around the whole sticky business.  They did this by asserting that any message related to a protected group is discriminatory.  It wasn't a good answer, but it was an answer: the only right the business owner has is to refuse to lend his talents to a message that, in Cole's words, "is apart from the identity of the customer." 

Notwithstanding its streamlining of the problem, this proposal simply avoids what the First Amendment is designed to protect: unpopular speech.  If the baker would write, "God bless the union of Ruth and Marty" on a cake, he could be compelled to write, "God bless the union of Dave and Craig."  The only difference, according to Craig and Mullins, is the "identity" of the customer.  Expression in this context can mean only one thing:  discriminatory animus.  Thus do the respondents render moot, on the specious basis that "identity" determines meaning, Phillips's compelled speech objection. 

But talk about disturbing: the respondents actually go farther.  They not only advocate for compelling speech, but are willing to emasculate the business owner's power of speech altogether.  The business owner is not just being told what he must say.  He is being told by institutional authority what he in fact did say:

[W]e don't ask is it expressive from the perspective of the baker or is expressive from the perspective of the – of a customer.  We ask what's the state's interest in regulating?  What is the state doing? 

And then, in response to a question by Justice Alito about whether such "regulation" applies to the writing on the cake:

It doesn't matter whether it's speech or whether it's not speech.

As for Hurley v. Irish-American Gay Group of Boston, the Supreme Court case proscribing compelled speech, Mr. Cole is ready there, too, with a solution that would shrink the Hurley ruling's reach to naught:

[W]here the state is regulating only expression, no conduct at all, just a banner that's in the parade, the Court takes a different view, but where expressive conduct is involved ... the analysis this Court uses with respect – to expressive conduct is is the state regulating the conduct for some reason other than what it expresses or is it regulating what it expresses?

Got that?  If you can prove that you are speaking in a zero-conduct vacuum, you get to choose your words.  (Better not scratch your nose!)

Conventional wisdom says Phillips's free speech claim is a workaround for a free exercise of religion claim, a way to end-run adverse judicial precedent.  The respondents' countermoves show just how nearsighted that strategy is.  Uninhibited speech and religious exercise are profoundly intertwined.  The predicted victory for Phillips on narrow fact-based grounds stemming from the Commission's animus would not only fall short of being a victory for religious liberty, as commentators have noted.  It would be a setback for free speech.