What Justice Gorsuch’s Dissent in Pavan Means for Masterpiece Cakeshop

Part One in a Series on Masterpiece Cakeshop 

On Monday, certiorari was granted in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  The same day, Justice Gorsuch dissented from the Supreme Court’s summary reversal in Pavan v. Smith.  Because Pavan involves the treatment of same-sex spouses on a child’s birth certificate, many concluded that Justice Gorsuch would also rule against the same-sex couple in Masterpiece Cakeshop.  That case, Masterpiece Cakeshop, concerns whether a Christian baker has a First Amendment right to refuse to bake custom-designed cakes for same-sex weddings.

Much has been made of Justice Gorsuch’s dissent in Pavan v. Smith, and how it means Justice Gorsuch will be unsympathetic to gay rights in subsequent cases.  However, there are reasons to think that nothing can be gleaned from Justice Gorsuch’s dissent in Pavan, a Fourteenth Amendment case where Justice Gorsuch’s ruling may be more about the scope of Supreme Court review than anything substantive.  Below, I tackle both positions: that Justice Gorsuch’s dissent in Pavan means almost nothing about how he will rule in Masterpiece Cakeshop, and that it means almost everything.


Background on Pavan:

Pavan v. Smith concerns two Arkansas statutes, although only one was challenged.  The first statute – § 20-18-401 –  provides that a child’s mother is to be listed on his birth certificate, along with the mother’s husband, unless someone else’s paternity has been established by a court.  The second statute –  § 9–10–201 –  provides that “[a]ny child born to a married woman by means of artificial insemination shall be deemed the legitimate natural child of the woman and the woman’s husband if the husband consents in writing to the artificial insemination.”  Arkansas same-sex couples, who conceived using artificial insemination, sued after only the biological mother was permitted to be placed on a child’s birth certificate and not her wife.  These married couples argued that this disparate treatment of same-sex couples violated Obergefell v. Hodges, the landmark case articulating a Fourteenth Amendment right that prohibits states from banning same-sex marriage.

These couples advanced an excellent argument, because same-sex married couples were denied the privileges attendant to having both parents listed on a child’s birth certificate.  The Arkansas trial court invalidated § 20-18-401 as a violation of the Fourteenth Amendment, but the Arkansas Supreme Court reversed.  The Arkansas Supreme Court held that § 28-18-401 isn’t about granting benefits to heterosexual married couples, but uses a marriage simply as a way of showing biological paternity – unless that paternity is established another way.  The statute is about how to establish paternity more than anything else.  Thus, a husband is listed on the birth certificate as the father only if someone else’s paternity hasn’t been established in a court of law.  Further, as dissenting judges of the Arkansas Supreme Court noted, “[a]t oral argument, the State of Arkansas conceded, properly so, that, pursuant to the Court’s holding in Obergefell, [a married same-sex] couple is entitled to a birth certificate listing both women as parents. The State suggested that this court simply substitute the word “spouse” for “husband” in § 9-10-201(a).”

The United States Supreme Court did not buy the Arkansas Supreme Court’s rationale that the Arkansas statutory scheme was about paternity, not rights afforded to married couples, especially in light of § 9-10-201’s provision on artificial insemination.  Without even holding oral argument, the Supreme Court reversed the Arkansas Supreme Court.

Justice Gorsuch, joined in dissent by Justices Thomas and Alito, concluded that there was no reason to invalidate §28-18-401, because the state has a right to set up a birth certificate scheme related to biological paternity.  He further remarked that § 9-10-201 hadn’t been appealed by the parties, and that the state of Arkansas already conceded that same-sex married couples should receive the same treatment as opposite-sex couples under that statute, so there was no reason for judicial intervention here.

View One: Pavan means nothing

Justice Gorsuch’s ruling in Pavan is fairly technical.  Despite media commentary stating otherwise, he also never actually expresses a view about Obergefell or its reach. He reads § 28-18-401 as a statute about biological paternity and does not review § 9-10-201, because it was never challenged in the initial lawsuit or reviewed below.  There is reason to think Justice Gorsuch’s dissent in Pavan is more a reflection on his views about summary reversal and the power of the Court than anything else.

Justice Gorsuch’s has shown in other cases this term that he is unwilling to step outside his role as judge to rewrite statutes or to review issues not before the Court.  Thus, his decision in Pavan may just be that – he thought the strong medicine of summary reversal was unwarranted.  If that is the case, there is no reason to think that this decision will affect Masterpiece Cakeshop.

Further, deciding that Gorsuch is anti-gay and assuming that all legal analysis hinges on personal politics is, in my view, a crass indictment of the rule of law.  Masterpiece Cakeshop is a difficult case that involves First Amendment rights and how they intersect with anti-discrimination laws.  A conclusion that the decision Justice Gorsuch will render in Masterpiece Cakeshop will be based on whether Justice Gorsuch believes in gay rights is unfairly reductive.  Justice Gorsuch may personally believe strongly in gay rights but have a robust view of First Amendment rights and religious liberty, or he may be unsympathetic to gay rights but recognize that this view shouldn’t affect the outcome of individual cases.

View Two:  Pavan means everything. 

On the other hand, Justice Gorsuch may be opposed to gay rights and vote in accordance with that preference.  Justice Gorsuch’s analysis in Pavan is quite nitpicky.  He follows the Arkansas Supreme Court’s somewhat stilted reading of § 20-18-401.  The entire statutory scheme relating to birth certificates seems to privilege husbands and wives far more than it cares about paternity.   And, even if the state of Arkansas conceded that it must apply § 9-10-201 to same-sex couples, the wording of the statute mentions only husbands and wives.  Perhaps Gorsuch’s rigid view of this case, and his reading of Arkansas’s statutory scheme, does evince some anti-gay animus, not simply judicial rigidity.  Even Chief Justice Roberts joined the per curiam majority in Pavan (or, at least, he did not join the dissent).

Plus, Justice Gorsuch was likely the fourth vote to grant certiorari in Masterpiece Cakeshop.  When the Supreme Court reviews a case, it is more likely to reverse the case than affirm.  So, even if Pavan is not a tell about Justice Gorsuch’s views on gay rights, he may be itching to reverse the lower court’s application of Colorado anti-discrimination laws to Christian cake designers anyway.

I’ll leave it to the reader to decide what conclusions to draw from Pavan, having presented both sides.  I would add a final note of caution, which is that even if Justice Gorsuch votes in favor of expansive First Amendment rights in Masterpiece Cakeshop, that’s still not demonstrative evidence of anti-gay animus.  I would want to see opinions that are more obviously indefensible before I took that view, although I appreciate why others might not feel so inclined to be charitable.

7 thoughts on “What Justice Gorsuch’s Dissent in Pavan Means for Masterpiece Cakeshop”

  1. If the government discriminates based on marital status, they have to allow everyone to marry (through the state); just as, if they allow adoption, they have to allow all couples to adopt.

    But you can’t force businesses to be part of ceremonies that people might associate with the business. Just as a person will associate a license plate with the state name on it, a person will associate a gay wedding with the caterers.

    If you see “Jill’s bakery” on a wedding cake at a wedding, you will assume Jill’s Bakery supports gay weddings, just like if you saw N*66ERS on a Texas license plate, you would assume Texas supports use of that despicable slur.

    Therefore, since Jill’s Bakery has a right to try not to be associated with anything it disapproves of (just as a government does), it has a right not to cater any event it disapproves of, just like Texas has the right to reject any license plate it disapproves of.


    1. Well, the government speech doctrine (based on what a reasonable observer would perceive) and the free speech rights of individuals (and then, how that might extend to a business), are all very different things, so the analogies are not airtight,


  2. If Gorsuch was the fourth vote for cert in Masterpiece, why wasn’t Scalia a fourth vote to grant cert for Elane v Willock, was was denied review? I contend that Scalia and Gorsuch were both 3rd votes, and another Justice (perhaps one itching to uphold the lower court ruling before he retires??) was the fourth vote in Masterpiece.


    1. Great question. The reason I think Gorsuch supplied the fourth vote is because the case was relisted so many times (I think 13 or 12), and his chambers is moving a bit slowly on cert petitions. That said, it was relisted a few times before he even joined the Court, so something very odd has been going on with this case. Interesting theory- although I don’t know if Scalia and Gorsuch would be totally lockstep on this issue (I mean that sincerely; I don’t know). You may be right!


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