Let Them Eat Cake – Or Not

As I recently noted, on June 26, 2017—the anniversary of three major gay rights cases: Lawrence, Windsor, and Obergefell—the United States Supreme Court granted certiorari in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111. Having read the petition and responsive briefs, it would appear that the case has the potential to undermine anti-discrimination laws in the guise of protecting free expression and religion.

The facts are not complicated. In 2012, Charlie Craig and David Mullins planned to get married in Massachusetts and hold a reception in Colorado. Joined by Craig’s mother, the couple went to the petitioner’s shop and explained to owner Jack Phillips that they wanted to purchase their wedding cake from him. Without discussing potential designs or details, Phillips stated that he would sell them other baked goods but that “I just don’t make cakes for same-sex weddings.”

The couple filed a complaint with the Colorado Civil Rights Division, and an administrative law judge found that discrimination had occurred, which finding was upheld by the Colorado Court of Appeals. The tribunals found that Phillips “categorically refused” to take the order without any discussion of the design of the cake. The administrative law judge distinguished situations where bakers had declined to design a cake with an offensive message. Thus, the anti-discrimination law targeted conduct (categorically refusing to provide a service to a gay couple) not expression (creating a cake with a specific message).

In its petition for certiorari, the bakery claimed that the act of providing a cake, regardless of the message, was compelled speech because of the artistic decisions the baker makes. Phillips further argued that compelling him to provide a cake to a gay couple violate his sincerely held belief that marriage is limited to the union of one man and one woman. He also complained that other bakers were treated differently when they refused to bake cases with explicit homophobic or racist messages but were not held to have violated antidiscrimination laws.

The petitioner’s claim of compelled speech might have greater force if the couple had expressed interest in a cake that had a specific message that Phillips found offensive, but that was not the record of this case. Instead, the petitioner claims that simply making the cake is an expressive act protected by the First Amendment. Accepting that broad premise severely undermines enforcement of antidiscrimination laws. Many services covered by public accommodations laws involve artistic choices that equal or exceed baking a cake. Photographers, florists, make-up artists, hair dressers, caterers, printers, tailors, furniture makers, gardeners, architects, graphic designers, and haberdashers, to name more than a few examples, all use aesthetic judgment that is arguably as expressive as baking a cake.

Further, if religious objection to a gay couple trumps antidiscrimination laws, then in addition to the wedding vendors and others listed above, innkeepers, secular wedding venues, and restaurants all have a get-out-of-jail-free card. And the broad exception cannot be limited to anti-gay sentiments. Some people have sincerely held religious beliefs that interfaith or interracial marriage are wrong, and there is no principled reason (if the petitioner is correct) why they should not be able to avoid laws that clash with their religious beliefs..

The lack of limiting principle for the position the petitioner advances explains why the Court has traditionally held that neutral laws of general applicability are constitutional even if there is some incidental impact on religious activities. See, e.g., Employment Division v. Smith, 494 U.S. 872 (1990) (denying unemployment compensation to employees fired for using peyote for religious ceremony). The Court has also distinguished between compelling specific speech, Hurley v. Irish-American Gay, Lesisan & Bisexual Group of Boston, 515 U.S. 557 (1995) (private parade cannot be compelled to include group that wants to make a specific statement), and cases where the action at issue did not compel speech. Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47 (2006) (requiring schools to provide equal access to military recruiters did not compel schools to endorse Don’t Ask, Don’t Tell policy).

I assume that it was the four conservative justices (the Chief Justice and Justices Thomas, Alito, and Gorsuch) that voted to grant cert. If I am correct, the decision will likely come down to Justice Kennedy’s views on the subject. If he agrees with the respondents and the decision is 5-4, he will be the senior most justice in the majority and would probably write the decision. If so, I wouldn’t be surprised if it is released on June 26, 2018.

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