Dec 03 2017

Colorado Gay Wedding Cake Case: Is Selling A Cake “Speech”?

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.

The couple is on the left, the baker is on the right – no pun intended

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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7 comments

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    • Ann on December 3, 2017 at 11:58 am
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    He did not deny selling them a cake ~ He denied them his OWN TALENT. His CREATION is a personal expression of his beliefs. I am not a lawyer or politician however, it seems to me that he is within his right to not give up his creativity which is much more personal than just his “job” of making cakes. Can you force Van Gogh to paint a picture? Force a musician to write a Symphony? Is there any common sense left in this world? Just my humble opinion.

    1. You cannot force Van Gogh to paint a picture but this is a cake – a piece of commerce and not art. Perhaps if I blend my own coffee beans, add certain “Secret spices” or making super intricate designs with the milk and cream, I can say I am creating art in brewing a a cup of coffee and then decide not to sell my creativity to Black people. The cake will be eaten and the “art ” will be gone. Its just something to buy and sell no matter how creative it is. Once you are open to interstate commerce you cannot discriminate and the State of Colorado has chosen to protect gay people in the same way that Federal law protects folks based on gender, disability, national origin, religion and race.

    • Matasano on December 3, 2017 at 5:58 pm
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    Don’t be surprised if the Supreme Court, given its composition will get this wrong. Excellent analysis.

    1. Thanks – Anything could happen, you are correct

    • Cupcake Monster on December 6, 2017 at 7:36 am
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    “public accommodations laws are essentially forcing a message of acceptance that may burden Masterpiece Cakeshop’s expressive rights”

    No they are not.

    The baker no more condones being gay simply by making a custom cake for a gay wedding than a photojournalist condones war by making artsy~fartsy war photos. Or any more than a lawyer condones murder by representing an accused murderer.

    The only thing the baker expresses by providing her baking services alone is her skill in baking. Providing your services to a person or group does not mean you condone or endorse the activity of such person or group.

    It should be 8-1 (the mute that dare not speak his name at oral argument, of course, will vote in favor of the baker.)

    1. I agree with your legal analysis but Alito, Thomas and Gorsuch are locks to vote for the baker IMO. Roberts may be up for grabs and Kennedy is the swing but I don’t see any of the other three voting against the baker.

    • Cupcake Monster on December 6, 2017 at 11:57 pm
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    Neil “you can risk your life or your job but you can’t keep both safe” Gorsuch is a corporate tool created by the Koch Brothers bought and paid for so I agree his vote is a foregone conclusion — he will always vote in favor of business doing whatever it desires. The only cases he will ever be of interest is BigCorp. v. BigCorp. His algorithm may not have been programmed to deal with such cases.

    Thomas — still brain dead.

    I would hope Alito realizes the can of worms that will open if he votes in favor of the baker.

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