In its brief supporting a Colorado baker who refused to bake a wedding cake for a same-sex couple, the U.S. Justice Department relied heavily on a 1995 Supreme Court decision that the gay community lost. John Ward, who argued that case, says the government's reliance is misplaced.

Ward was the first openly gay man to argue in the high court when he stood at the podium in the case, Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, which was argued in April 1995.

The Hurley case stemmed from a 1993 decision by the South Boston Allied War Veterans Council to deny a place in the event for the Boston gay rights group. The city had authorized the council to organize the St. Patrick's Day Parade.

Massachusetts' highest court ordered the group's inclusion in the parade under a state law prohibiting discrimination on account of sexual orientation in public accommodations. The veterans council appealed to the U.S. Supreme Court, claiming this was a violation of its free speech. The justices agreed, ruling 9-0.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the free speech arguments by the Justice Department and Colorado baker Jack Phillips echo the winning arguments in Hurley, although Phillips has added a free exercise of religion claim to his appeal of the finding that he violated his state's public accommodations law.

We reached out to Ward about his argument years ago, and he said he believes there are important differences between the two cases. “Trying to shoehorn Hurley into a run-of-the-mill public accommodations case is frivolous,” he said. “The holding in Hurley depended largely on Justice [David] Souter's observation that the state court's construction of the Massachusetts' public accommodation law to include a parade was 'peculiar.'”

The distinction between a parade and a bakeshop, he said, is obvious. “Imagine how far the petitioners in this case would have gotten if the couple wanted a cake decorated with a Star of David and the bakers refused because it forced them to legitimate the Jewish religion in contradiction of their Christian religion.”

Ward, one of only two openly gay lawyers in Boston in the 1970s, moved from a criminal defense practice into gay advocacy when he took on a pro bono challenge to a law enforcement sting operation directed at gay men at the Boston Public library. In 1978, he founded Gay & Lesbian Advocates & Defenders, GLAD, which played a leading role in securing a right to marriage for same-sex couples in the 2015 U.S. Supreme Court decision, Obergefell v. Hodgest.

Today, Ward handles appointed federal and state post-conviction litigation while also doing some pro bono cases for GLAD. We spoke with Ward recently about his memories of the Hurley case and his thoughts about the latest high court dispute that has galvanized the gay community.

Supreme Court Brief: How did you become involved in the Hurley case?

Ward: I sort of wandered back and forth between San Francisco and Boston for many years. In the 90s, I had just come back to Boston and I participated to some degree at the Supreme Judicial Court. GLAD had been litigating in state court for several years. This was a big deal in Boston back then. There were strong feelings. When the Supreme Court granted cert, the clients were keen to have a gay man represent them. They asked me to do it.

What did you think your chances were when review was granted?

We knew we had an uphill battle. You get into it and in any case, you really have to develop a theory that you think is going to work and persuade yourself it's going to work. Our take on it was the (group's) banner—which was really what the case largely turned on—was no more than an identifying mark for people who would otherwise be unidentifiable, sort of like a yarmulke or a necklace with a cross. The court took a different view and said, “Your mere presence as a group is a message.”

What was the climate like inside and outside of the Supreme Court as arguments approached?

I think the case was interesting more than explosive. There was lots of coverage. I was on the Larry King show. It was almost a spectator event in some sense. It didn't feel charged, It was obviously an attention-getter, but emotions ran a lot higher on the marriage cases.

Although nothing was said out loud, it seemed like the clerk and court personnel were a little bit concerned there would be a rumpus in the courtroom. It wasn't a hostile atmosphere, but everyone was definitely walking on egg shells. And the Bowers case (1986 Bowers v. Hardwick upholding criminal sodomy laws) had been decided not many years before and it was pretty disrespectful.

What were the arguments like?

I was completely freaked out writing the brief. When I stood up there, I was so over-prepared that I was just fearless. I felt like I was channeling something. I practice Aikido, a kinder form of martial arts. I felt like I had multiple attackers.

There were lots of questions. Chief Justice Rehnquist, before I even got to my opening about “Mr. Chief Justice, may it please the court,” he said, “Now Mr. Ward, you're not arguing this is state action, are you?” The questions started right away and I would say they ranged from skeptical—with Justice Stevens vaguely benevolent—to Justice Scalia, who was as you might expect. It was pretty clear we had a tough row to hoe.

Of course I agonized afterwards I should have said this; I should have argued that. You repeat it in your head for 30 days afterwards.

I was not optimistic, but you know I had hope. When you represent hopeless causes, you have to have that. I definitely didn't think it was going to be nine to nothing.

Besides disagreeing, what did you think of the opinion?

One of the interesting things about Hurley was the tone of the opinion, which was actually respectful. Souter wasn't afraid to use the words gay and lesbian. He took our position seriously; he didn't write it off. In some ways, we later consoled ourselves thinking, well, this was the sacrificial lamb that led to the Colorado decision later. (1996 Romer v. Evans, striking state constitutional amendment barring laws protecting the rights of gay persons)

We were in the middle of a sea change culturally. This is such a process.

What do you make of the Justice Department's reliance on Hurley and Boy Scouts of America v. Dale?

I think cases like Dale and Hurley are pretty easy to distinguish from this case because in both of them an outsider was kind of walking in with a dissonant message. Here, there isn't anything like that. It's obvious you're not endorsing a message with a cake. Whereas in the parade, it's much easier to see—even though we disagree with that—your mere presence sends a message.

What they're doing is playing this thing that cakes are artistic creations. Unless I'm missing something I'm not aware of, that has never worked. Once you enter the stream of commerce, you expect some limitations on your activity.

A few years ago, I think this would have been an easier case. It seems like the mood has shifted. We always used to joke there was a gay exception to the First Amendment and a Boy Scout exception. But it's interesting. Society is moving on. The Boy Scouts are different now. Business really can't be bothered with all this stuff for the most part. And here's the court apparently listening with great interest to people who want to use religion as a sword.

What do you think the Supreme Court will do in Masterpiece Cakeshop?

Ward: I'm guardedly optimistic. I suppose it probably comes down to [Justice Anthony] Kennedy. If you allow this exception [to the anti-discrimination laws], God knows where it would stop.

My hope is that at the end of all this stuff, we will come to the realization as a species there isn't any “them,” only “us.” But of course that is a long process. I'm still kind of idealistic about it. I think it's important to remember these conversations are happening. And things do change, at a glacial pace sometimes.

In its brief supporting a Colorado baker who refused to bake a wedding cake for a same-sex couple, the U.S. Justice Department relied heavily on a 1995 Supreme Court decision that the gay community lost. John Ward, who argued that case, says the government's reliance is misplaced.

Ward was the first openly gay man to argue in the high court when he stood at the podium in the case, Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, which was argued in April 1995.

The Hurley case stemmed from a 1993 decision by the South Boston Allied War Veterans Council to deny a place in the event for the Boston gay rights group. The city had authorized the council to organize the St. Patrick's Day Parade.

Massachusetts' highest court ordered the group's inclusion in the parade under a state law prohibiting discrimination on account of sexual orientation in public accommodations. The veterans council appealed to the U.S. Supreme Court, claiming this was a violation of its free speech. The justices agreed, ruling 9-0.

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the free speech arguments by the Justice Department and Colorado baker Jack Phillips echo the winning arguments in Hurley, although Phillips has added a free exercise of religion claim to his appeal of the finding that he violated his state's public accommodations law.

We reached out to Ward about his argument years ago, and he said he believes there are important differences between the two cases. “Trying to shoehorn Hurley into a run-of-the-mill public accommodations case is frivolous,” he said. “The holding in Hurley depended largely on Justice [David] Souter's observation that the state court's construction of the Massachusetts' public accommodation law to include a parade was 'peculiar.'”

The distinction between a parade and a bakeshop, he said, is obvious. “Imagine how far the petitioners in this case would have gotten if the couple wanted a cake decorated with a Star of David and the bakers refused because it forced them to legitimate the Jewish religion in contradiction of their Christian religion.”

Ward, one of only two openly gay lawyers in Boston in the 1970s, moved from a criminal defense practice into gay advocacy when he took on a pro bono challenge to a law enforcement sting operation directed at gay men at the Boston Public library. In 1978, he founded Gay & Lesbian Advocates & Defenders, GLAD, which played a leading role in securing a right to marriage for same-sex couples in the 2015 U.S. Supreme Court decision, Obergefell v. Hodgest.

Today, Ward handles appointed federal and state post-conviction litigation while also doing some pro bono cases for GLAD. We spoke with Ward recently about his memories of the Hurley case and his thoughts about the latest high court dispute that has galvanized the gay community.

Supreme Court Brief: How did you become involved in the Hurley case?

Ward: I sort of wandered back and forth between San Francisco and Boston for many years. In the 90s, I had just come back to Boston and I participated to some degree at the Supreme Judicial Court. GLAD had been litigating in state court for several years. This was a big deal in Boston back then. There were strong feelings. When the Supreme Court granted cert, the clients were keen to have a gay man represent them. They asked me to do it.

What did you think your chances were when review was granted?

We knew we had an uphill battle. You get into it and in any case, you really have to develop a theory that you think is going to work and persuade yourself it's going to work. Our take on it was the (group's) banner—which was really what the case largely turned on—was no more than an identifying mark for people who would otherwise be unidentifiable, sort of like a yarmulke or a necklace with a cross. The court took a different view and said, “Your mere presence as a group is a message.”

What was the climate like inside and outside of the Supreme Court as arguments approached?

I think the case was interesting more than explosive. There was lots of coverage. I was on the Larry King show. It was almost a spectator event in some sense. It didn't feel charged, It was obviously an attention-getter, but emotions ran a lot higher on the marriage cases.

Although nothing was said out loud, it seemed like the clerk and court personnel were a little bit concerned there would be a rumpus in the courtroom. It wasn't a hostile atmosphere, but everyone was definitely walking on egg shells. And the Bowers case (1986 Bowers v. Hardwick upholding criminal sodomy laws) had been decided not many years before and it was pretty disrespectful.

What were the arguments like?

I was completely freaked out writing the brief. When I stood up there, I was so over-prepared that I was just fearless. I felt like I was channeling something. I practice Aikido, a kinder form of martial arts. I felt like I had multiple attackers.

There were lots of questions. Chief Justice Rehnquist, before I even got to my opening about “Mr. Chief Justice, may it please the court,” he said, “Now Mr. Ward, you're not arguing this is state action, are you?” The questions started right away and I would say they ranged from skeptical—with Justice Stevens vaguely benevolent—to Justice Scalia, who was as you might expect. It was pretty clear we had a tough row to hoe.

Of course I agonized afterwards I should have said this; I should have argued that. You repeat it in your head for 30 days afterwards.

I was not optimistic, but you know I had hope. When you represent hopeless causes, you have to have that. I definitely didn't think it was going to be nine to nothing.

Besides disagreeing, what did you think of the opinion?

One of the interesting things about Hurley was the tone of the opinion, which was actually respectful. Souter wasn't afraid to use the words gay and lesbian. He took our position seriously; he didn't write it off. In some ways, we later consoled ourselves thinking, well, this was the sacrificial lamb that led to the Colorado decision later. (1996 Romer v. Evans, striking state constitutional amendment barring laws protecting the rights of gay persons)

We were in the middle of a sea change culturally. This is such a process.

What do you make of the Justice Department's reliance on Hurley and Boy Scouts of America v. Dale?

I think cases like Dale and Hurley are pretty easy to distinguish from this case because in both of them an outsider was kind of walking in with a dissonant message. Here, there isn't anything like that. It's obvious you're not endorsing a message with a cake. Whereas in the parade, it's much easier to see—even though we disagree with that—your mere presence sends a message.

What they're doing is playing this thing that cakes are artistic creations. Unless I'm missing something I'm not aware of, that has never worked. Once you enter the stream of commerce, you expect some limitations on your activity.

A few years ago, I think this would have been an easier case. It seems like the mood has shifted. We always used to joke there was a gay exception to the First Amendment and a Boy Scout exception. But it's interesting. Society is moving on. The Boy Scouts are different now. Business really can't be bothered with all this stuff for the most part. And here's the court apparently listening with great interest to people who want to use religion as a sword.

What do you think the Supreme Court will do in Masterpiece Cakeshop?

Ward: I'm guardedly optimistic. I suppose it probably comes down to [Justice Anthony] Kennedy. If you allow this exception [to the anti-discrimination laws], God knows where it would stop.

My hope is that at the end of all this stuff, we will come to the realization as a species there isn't any “them,” only “us.” But of course that is a long process. I'm still kind of idealistic about it. I think it's important to remember these conversations are happening. And things do change, at a glacial pace sometimes.