Women Attorneys Pivotal on Both Sides of SCOTUS Cake Controversy

By Patrick L. Gregory

The LGBT discrimination and religious freedom controversy heading to the U.S. Supreme Court is deeply personal, women attorneys representing each side told Bloomberg Law.

The U.S. Supreme Court will hear oral argument Dec. 5 in one of the most closely watched cases of a blockbuster term, Masterpiece Cakeshop v. Colo. Civil Rights Comm’n, No. 16-111.

The dispute over Christian baker Jack Phillips’s refusal to make a wedding cake for a same-sex couple for religious reasons has captured the nation’s attention.

Kristen K. Waggoner, senior vice president at Alliance Defending Freedom, Scottsdale, Ariz., will argue for Phillips, the petitioner challenging Colorado’s antidiscrimination law.

Waggoner “wanted to be able to practice law to defend religious freedom” from “the time I was in my early teen years,” she said.

“I believe that in order to have freedom for ourselves, we have to extend freedom to others,” and a “very basic fundamental right to be able to speak and live consistent with one’s convictions” is at stake here, she said.

Ria Tabacco Mar of the American Civil Liberties Union, New York, argued the case below at the Colorado Court of Appeals. Mar filed the response brief at the U.S. Supreme Court on behalf of Charlie Craig and David Mullins, the same-sex couple denied service.

The case isn’t “just about LGBT people,” said Mar whose 2012 wedding to Robyn Mar was featured in the New York Times about three years before the Supreme Court recognized the right of same-sex couples to marry, in Obergefell v. Hodges .

“It really is about this fundamental premise that in America, all of us should have the freedom to go about our daily lives without fear and uncertainty of being turned away,” Mar said.

Zealous Advocates

One of the reasons “I am so passionate” about the case “is that I know Jack Phillips” and clients like him, Waggoner said.

Phillips and her clients in similar cases “are such loving individuals” and “want to serve everyone,” she said.

But they “simply can’t create art that violates the core of who they are,” Waggoner said.

Mar said she’s “gotten to know” Craig and Mullins “over the past several years,” along with Craig’s mother, Deborah Munn.

She pictures their rejection vividly and goes back “to the moment before the bakery turned away Dave and Charlie, and they’re sitting there with Debbie and you can just imagine the excitement.”

“Planning a wedding is such an exciting thing and you’re dreaming of what kind of cake you’re going to get,” Mar said.

To have that moment “taken away,” and for a mother to watch her son have that moment disappear “is just devastating,” Mar said.

Public Interest

Mar knew from a young age that she wanted to do public interest work, but didn’t think it would be as an attorney, she said.

“My mother actually went to law school when I was five years old, and I have vivid memories of paging through her casebooks and thinking they were incredibly boring.”

“Imagine her surprise that I decided to follow in her footsteps,” Mar said.

Mar worked at the Neighborhood Defender Service of Harlem, “a holistic public defender office,” after completing her undergraduate degree from Harvard College, she said.

That experience “cemented for me that law was the right toolkit for me to go about doing the social justice work I knew I wanted to do.”

From Cravath to ACLU

Mar’s path to the ACLU included clerkships for U.S. Court of Appeals for the Sixth Circuit Judge Julia Smith Gibbons and U.S. District Court for the Southern District of New York Judge Victor Marrero.

It also included a stint at Cravath, Swaine & Moore LLP, New York, which was ranked as the top law firm in the Vault 100 survey for 2017 and 2018.

Some questioned why Mar would go to Cravath if her goal was to practice public interest law, she said.

The firm is “filled with very smart lawyers” and also “has the privilege of doing really interesting work,” she said.

Even “as a very junior associate” at Cravath, “I got substantive experience that set me up to be a lawyer” at public interest groups, first at the NAACP Legal Defense & Educational Fund and then at ACLU, she said.

Those are “places that candidly don’t have the capacity to train junior lawyers in the same way” as a large firm like Cravath, Mar said.

“I had a terrific experience at Cravath,” Mar said.

At the ACLU, Mar helped successfully represent same-sex and heterosexual couples in their challenge to Kim Davis, the Kentucky county clerk who entered the national spotlight by refusing to issue wedding licenses due to her religious objection to same-sex marriage.

Mar gave birth to twins six weeks before President Donald Trump’s election. The organization has been a frequent opponent of the Trump administration, which has sided with the baker in this case.

Her “very busy year at the ACLU” as a new mother of twins has “been quite the roller coaster,” she said.

Justice Tip

Waggoner got pivotal career advice from Washington Supreme Court Justice Richard B. Sanders while clerking for him in her home state, she said.

Sanders knew that she wanted to represent ministries and nonprofits on religious freedom matters, Waggoner said.

“It’s pretty hard to find a conservative firm in Seattle” that “will allow you to do those kinds of cases,” she said.

Sanders encouraged her to apply to Ellis, Li & McKinstry, Seattle, “which is where I ended up spending my career” in private practice over 17 years, Waggoner said.

Her first case involved “a pastor that was being compelled to testify” despite his assertion of the clergy-penitent privilege, she said.

That case led Waggoner to other clients, including religious organizations and individuals, which “necessarily gave me a number of constitutional cases where I became familiar with ADF,” she said.

Public Advocacy

Waggoner oversees more than 60 attorneys and staff members at ADF, including those responsible for media communications, she said.

“Oftentimes legislators will reach out to ADF and ask for our expertise, she said.

That includes writing legislation, providing expert testimony, and “determining what bills are constitutional and how best to protect the rights of the unborn as well as religious freedom,” she said.

She encourages her team to recognize “that you can’t just win a case in the courtroom” but must also “try to win it in the public square.”

Waggoner has defended her clients in high profile media venues, including ABC and Fox News.

She’s also testified before Congress on religious freedom matters.

If courtroom victories are to last, “then we need to be able to advocate” about why they “matter to society at large and why they’re for the good of all,” she said.

To contact the reporter on this story: Patrick L. Gregory in Washington at pgregory@bloomberglaw.com

To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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