On Tuesday The Supreme Court will hear oral argument on one of the most anticipated cases on the docket for this term: Masterpiece Cakeshop v. Colorado Civil Rights Commission Back in 2012, Charlie Craig and David Mullins were set to celebrate their wedding in Denver, after having been married in Massachusetts. Jack Phillips, a well known, creative, custom cake baker who owns and operates Masterpiece Cakes, turned them down, citing his Christian faith’s opposition to gay marriage.
The couple filed a complaint with the Colorado Civil Rights Commission charging Phillips with violating Colorado’s Human Rights Law, which prohibits discrimination in commerce based on sexual orientation. Interestingly, and somewhat hypocritically, the State of Colorado at that time did not allow gay marriage which is why the couple had to go to Massachusetts for the actual marriage and hold the reception in Colorado – a little bit of “Do as I say not as I do” if you ask me, but I stray. The Commission ruled that Phillips had violated the law and Phillips sued to overturn the decision.
His argument is not that he did not violate the law – his argument is that the law compels him to speak positively about gay marriage when he does not condone it. The First Amendment not only protects speech, it protects us from being forced to say something we don’t want to say – which is why Jehovah’s Witnesses, for example, have won cases allowing them to sit during the Pledge of Allegiance at school and to cover over the phrase “Live Free or Die” on their New Hampshire license plates. Phillips’ argument is strengthened by the couple wanting one of his elaborate custom cakes which he personally decorates as opposed to one of his already-created standard cakes, which he was willing to sell them. The Commission did not buy the argument he was selling, finding that selling a custom cake to a straight couple but denying a sale of one to a gay couple violates the law.
So in a nutshell the case presents a question of whether the selling of a custom cake is speech. Like all SCOTUS cases, the case is not just about the facts of the actual case itself. It has far-reaching implications however particularly if SCOTUS agrees with Phillips and determines that his First Amendment rights trump the couple’s rights under the State anti-discrimination law. Many businesses opposed to gay marriage – or whatever else they may be opposed to – may be able to find a way to turn the sale of their merchandise into “speech”
I think that selling a cake is not pure speech. At most, selling a cake is “expressive conduct” which is different than “expressive speech.”
My friend Constitutional law professor Eugene Volokh, a national expert of free speech, has noted in his brief in support of the gay couple, no one looks at a cake and thinks ” The baker has condoned this union.” Expressive conduct, like the burning of a Vietnam War draft card, may be regulated so long as the government’s regulation targets the conduct component (the destroying a draft card) not the speech component (the desire to express anti-war sentiment). It why it is illegal to burn a draft card but not a flag – the draft card belongs to the government technically while the flag is private property so its owner can use it for speech. A regulation on expressive conduct is permissible if the law (1) furthers an important interest, (2) that is unrelated to the suppression of expression, and (3) the restriction on any First Amendment freedoms is no greater than essential to further the important interest. The problem here as how one views these factors will likely depend on one’s view of the world. The first two factors will likely go the way of the Commission. A State has determined that it wants to pass laws to fight discrimination against sexual orientation. Clearly that is an important interest. As to the second factor, the law appears speech neutral so it is facially not related to the suppression of expression. The struggle here, in formulating any rule, will be whether the government’s interest is unrelated to the suppression of expression.The Commission has a good argument that its anti-discrimination laws foster economic equality, an interest unrelated to compelling expression. However, to the extent the Commission argues that public accommodations laws preserve the dignity of a minority community, public accommodations laws are essentially forcing a message of acceptance that may burden Masterpiece Cakeshop’s expressive rights. This factor however I think goes to the Commission due to the purely commercial nature of the law and the conduct involved. So its the last factor that is particularly subject to interpretation: Is forcing the baker to do the custom cake too much when there are other options for the customer? Are the seller’s free speech rights greater than the State’s right to fight discrimination?
The Court will have to walk a tightrope in drafting this decision. After all, religious leaders could well be concerned that a ruling against the baker could force them to conduct ceremonies prohibited by their religion. That is highly unlikely though as performing a religious ceremony is far more “Speech” than selling a custom cake. And of course, the clergy also have the First Amendment’s protects of Freedom of Religion on their side.
But its the extension of the law to other businesses that I think will cause the Court to rule in favor of the Commission. Any rule that provides First Amendment protection to escape an anti-discrimination law would invalidate as unconstitutional much of civil rights law. A Christian baker could deny service to a Muslim couple because he doesn’t wish to express pro-Islam sentiment. Any minority group’s civil rights could then be overridden by free speech rights. Anti-discrimination laws have a long history in this country of accommodations allowing vulnerable minority groups equal access to the economy, and protect them from “the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.”
Mitch McConnell’s blocking of Merrick Garland, along with the Senate’s confirmation of Neil Gorsuch (on majority vote as opposed to the usual “advice and consent” 60-vote margin)means that it will all come down to Justice Kennedy, who recently held gay marriage bans unconstitutional, but who is also a staunch defender of free speech. The court is an almost certain 5-4 on this issue so all eyes will once again be on Kennedy. I think that he will side with the couple and rule that the conduct here is too commercial to be expressive conduct and that deciding otherwise could lead to a slippery slope.
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