//  10/18/17  //  In-Depth Analysis

Last month, DOJ filed an amicus brief in support of the petitioner in Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commiss. DOJ argues that First Amendment guarantees of freedom of expression preclude the application of Colorado’s general antidiscrimination law to a boutique bakery that produces custom-made wedding cakes. The DOJ brief raises important theoretical questions about the scope of judicial review under the freedom of speech clause of the First Amendment.

I yield to no one in my support of these First Amendment freedoms. But precisely because I treasure them, I think it important properly to understand and apply them, lest they be diluted and weakened during times of actual political repression when we will need their strong and clear protection.

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The Colorado Antidiscrimination Act (“CAA”) makes it unlawful for persons “to refuse, withhold from, or deny to an individual or a group, because of . . . race, creed, color, sex, sexual orientation, . . . national origin, . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.” CAA defines a “place of public accommodation” as “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public.”

CAA is typical of antidiscrimination statutes enacted in the wake of the Civil Rights Act of 1964.  The 1964 Act, which forever changed the landscape of American law, established that products and services offered to the general public could not be granted or withheld at will. Decisions to sell products or services were not to be based upon certain defined categories, like race or sex.  Because all commercial actors subject to the requirements of the Act were equally compelled to be race- or sex-blind, such decisions were drained of personal expressive significance. After the 1964 Act, the proprietor of a drug store did not signify sympathy to civil rights if he served blacks at his soda-counter. He signified only that he obeyed the law.  

In the Masterpiece Cakeshop case, Petitioner offered sales and services to the public. The CAA therefore prohibited it from discriminating among its customers based upon their sexual orientation.  Among the sales and services offered by Masterpiece Cakeshop were the design and crafting of custom-produced cakes.

Jack Phillips, the owner and operator of Masterpiece Cakeshop, objected on religious grounds to same-sex marriage, and for this reason he refused to design a custom cake for the same-sex wedding of Charlie Craig and David Mullins. He also argued that his custom-designed cakes constituted speech for purposes of the First Amendment. The Colorado Court of Appeals found that Phillips’s denial of service violated the CAA and that Phillips’s conduct “was not sufficiently expressive so as to trigger First Amendment protections.”

The Free Exercise Clause, of course, concerns the authority of government to regulate conduct, like extending or withholding labor from customers, but for some reason DOJ wishes to characterize this case as essentially about freedom of expression.  It therefore argues in its amicus brief that “a custom wedding case is a form of expression, whether pure speech or the product of expressive conduct.” DOJ also contends that the requirements of CAA could not constitutionally be applied to Phillips because they would require him “to participate, through his creative expression, in an expressive event” and associate “himself with the celebratory message” inherent in a wedding. (Br. at 8)  I shall examine each of these arguments, but in reverse order.

I should begin, however, with the general observation that DOJ’s argument is fundamentally at odds with the project of antidiscrimination initiated by the 1964 Civil Rights Act.  The premise of antidiscrimination law is that arms’ length marketplace transactions are commercial conduct, not First Amendment speech.  DOJ characterizes its argument as creating an insignificant exception to this premise that will produce “only a narrow set of applications” relevant to remarkable bakers like Phillips.  (Br. At 21). But this is manifestly untrue.

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DOJ maintains that “Colorado’s public accommodations law . . . compels [Phillips] to participate through his creation in a ceremony that is deeply expressive in both religious and secular traditions.” (Br. at 26). Apparently DOJ believes that heightened First Amendment scrutiny is necessary whenever general and otherwise valid antidiscrimination laws are applied to compel persons to take part in “deeply expressive” events they find objectionable.  In DOJ’s view, when antidiscrimination laws are applied in this way they coerce speech and thus require close First Amendment attention.

DOJ’s argument has powerful implications. Consider, for example, the application of an antidiscrimination statute to mortuaries who on ideological grounds object to serving African Americans.  Funerals are certainly events that are as “deeply expressive” as weddings. DOJ’s argument would therefore imply that undertakers should be able to invoke heightened First Amendment scrutiny to block the application of the statute. Or consider a civil rights statute prohibiting theaters and concert halls from refusing service to Hispanics.  Because theaters and concerts are “deeply expressive” events, DOJ’s argument would seem to suggest that the application of the statute should receive heightened First Amendment scrutiny. DOJ’s argument also implies that courts should apply heightened First Amendment scrutiny to an antidiscrimination statute preventing private schools from excluding Japanese students; an educational experience is certainly as “deeply expressive” as a wedding. Or consider the consequences of DOJ’s argument for laws that prohibit doctors from discriminating against Catholic pregnant women. Childbirth is certainly as “deeply expressive” as a wedding. 

We could multiply such examples indefinitely. American social life is filled with events that can legitimately be characterized as “deeply expressive.” Perhaps seeking to avoid such extreme implications, DOJ seeks to qualify its claim with the thought that CAA somehow requires Phillips to participate “in the wedding celebration in a meaningful way.” (Br. at 28). But surely no one more meaningfully participates in funerals than do undertakers; no one more meaningfully participates in theatrical productions than do actors or producers; no one more meaningfully participates in education than do schools or teachers.  An attending doctor is surely a “meaningful” participant in physician-attended childbirth.  

The stakes raised by DOJ’s argument are thus very high. These stakes might be worth facing if DOJ’s argument rested upon a convincing account of the First Amendment.  But it does not. A general and otherwise valid antidiscrimination law—one that is enacted for proper reasons and cannot plausibly be accused of targeting speech—is a content-neutral law that does not require persons to express any message if applied to ordinary commercial transactions.  It does not matter if persons are required to offer their goods and services in the context of occasions that others regard as “deeply expressive.”  

General antidiscrimination laws forbid persons from withholding sales and services based upon certain enumerated characteristics of their customers—their the race, color, sex, creed, or sexual orientation, etc.  The premise of the Civil Rights Act of 1964 was that it did not matter whether the prejudiced owner of an inn regarded the leasing of his rooms as “deeply expressive” and personal. It did not matter if his Inn was a registered national landmark and thus carried “deeply expressive” meanings to the entire country.  Regulating decisions of public accommodations to extend service to travelers was the governance of conduct, not speech.

Modern antidiscrimination law rests on this same premise. The bigoted funeral director who is required to embalm a Catholic corpse is not thereby compelled to endorse Catholicism.  He is simply following the law. The “deeply expressive” quality of funerals is irrelevant. The bigoted school proprietor is not compelled to endorse bilingualism or Mexican identity merely because he is prevented by law from excluding Spanish-surnamed students.  The “deeply expressive” quality of the educational experience is irrelevant.

For First Amendment purposes, therefore, CAA regulates conduct, not speech. Landlords, funeral directors, and school proprietors are of course constitutionally protected if they wish to protest antidiscrimination laws or to advocate for their repeal. But they are not free to violate the law on the ground that disobedience itself constitutes protected speech. One might as well say that someone who drank to protest Prohibition, or who now uses marijuana to protest drug laws, is engaged in the kind of expressive conduct that triggers heightened First Amendment scrutiny.       

Like the 1964 Civil Rights Act, CAA does not require Phillips to affirm or reject any creed or idea. It simply prevents Phillips from discriminating against customers based upon their sexual orientation.  The fact that customers incorporate Phillips’s cakes into their own “deeply expressive” events is irrelevant.  If heightened First Amendment scrutiny were to be triggered by the fact that a wedding is a “deeply expressive” event, all the innumerable commercial actors who participate in weddings—furniture rental companies, chauffeurs, caterers, tailors, flower arrangers, wedding planners—could raise First Amendment challenges to the application of antidiscrimination law. Ditto for all the many commercial actors who participate in the countless other “deeply expressive” events that populate the landscape of American society—funerals, births, schools, theaters, concerts, and so on.   

Any such conclusion would create an exception to antidiscrimination law that was far from “narrow.”  It would in fact rip the guts out of any effort to establish equality in the commercial marketplace.

Fortunately, we need not embrace this conclusion, for it rests on the mistaken premise that CAA compels speech from commercial actors involved in “deeply expressive” events.  DOJ concedes, as it must, that “whether governmental compulsion creates an association with an unwanted message depends on a reasonable observer’s perception of the relevant expression.” (Br. At 20).  But compliance with the legal obligations of CAA conveys no message other than obedience to law. 

For all his customers know, Phillips might be a Holmesian “bad man” who complies with CAA only to avoid the price of legal penalties. Of course it might also be the case that Phillips wholeheartedly endorses CAA. Phillips’s customers, as well as the reasonable observer, have no way of confirming one conclusion or the other.  All they know is that Phillips obeys the law. They thus cannot associate any particular message with Phillips’s refusal to discriminate among his customers. CAA itself certainly does not contemplate or require that commercial actors who offer services to the general public embrace or adopt customers’ messages as their own.  CAA demands only compliance with the law’s requirements.

This is all so plain that one is tempted to imagine that DOJ’s actual objection to CAA might be that it violates First Amendment rights of association by requiring commercial actors to deal with persons or events whom they would rather avoid.  This objection, however, applies to all antidiscrimination laws in all contexts. Objections of this nature were raised during the debates surrounding the enactment of the Civil Rights Act of 1964, but we are now hopefully long past the day when commercial actors can claim First Amendment rights of association in the context of the public marketplace.  It should go without saying that all such claims are fundamentally inconsistent with the very project of prohibiting discrimination.

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We should turn, therefore, to DOJ’s first and seemingly more appealing argument that the application of CAA to Masterpiece Cakeshop triggers heightened First Amendment scrutiny because “a custom wedding cake can be sufficiently artistic to qualify as pure speech, akin to a sculptural centerpiece.” (Br. at 24).  This is a strange and bold claim, and so it is not surprising that DOJ hedges its bets by adding that “even if a custom wedding cake is not pure speech, Phillips’s act of designing and creating the cake is at least expressive conduct,” because it “involves both a subjective intent to convey a message that will be understood by those who view the final product and a significant likelihood that the message will be understood by those who view the final product.” (Br. at 25) 

Most persons do not think of cakes as “pure speech.” They instead consider cakes to be created objects, like chairs or tables. DOJ concedes that its argument does not apply to “transactions involving pre-made or off-the-shelf products.” (Br. at 22). But Phillips creates custom cakes, and DOJ proposes that the First Amendment comes into play with respect to products or services that are “inherently communicative” because they involve “active participation in an expressive event.” (Br. at 21).

Throughout its brief, DOJ insists that Phillips is not just any baker.  His creations are unique insofar as he uses flour and other ingredients to express specific messages designed in consultation with his clients.  DOJ analogizes Phillips to an artist who constructs specific cakes to convey the particular wishes of particular patrons. DOJ considers Phillips’s relationship to his work to be so unusual that his First Amendment challenge to CAA will only “rarely” be generalizable to other commercial actors. (Br. at 21).

DOJ is incorrect to assert that applying heightened First Amendment scrutiny to Phillips will constitute a narrow constitutional exception to antidiscrimination law.  Many, many vendors work closely with customers to create expressive goods and services. Phillips is no different than a carpenter who consults with clients to produce comfortable chairs that express their vision of elegant hospitality.  He is no different than a house painter who consults intensely with clients to produce the precise color that will convey the mood of subdued tranquility his clients wish to establish in their bedroom.  He is no different than a tailor who confers with clients to determine the fit and fabric required to convey the precise shade of sophistication his clients wish to display.  He is no different than a chef who discusses with clients how the preparation of food will subtly communicate the right quality of unostentatious complexity and virtuosity. He is no different than a florist who is asked to create an arrangement that conveys tasteful exoticism. He is no different than a jeweler whose client requests that he fashion earrings that express an unusual acquaintance with ancient Egyptian sarcophagi.

Such examples are endless. This is because DOJ characterizes Phillips in a manner that makes him what we would call an “artisan” (as distinct from an artist).  The commercial marketplace contains innumerable artisans.  Because CAA contains no exceptions for artisans who offer services to the general public, they cannot withhold their labor based upon the categories enumerated in the act. DOJ is thus advocating for an exception that is in fact quite broad.

At some points in its brief, DOJ seems to imply that the application of CAA to Phillips deserves heightened First Amendment scrutiny because Phillips’s cakes are “pure speech” or “expressive conduct.”  But this conclusion is careless and incorrect, because many content-neutral laws of general application apply to “pure speech” without raising the alarm of heightened First Amendment scrutiny. General tax rates are applied to movies, magazines and novels without creating First Amendment incident. General safety regulations are applied to concert halls and theaters without close First Amendment scrutiny.  Heightened First Amendment review is not triggered when general labor laws govern the status of museum employees. Minneapolis Star and Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983).

All agree that CAA is a general, content-neutral law.  It may thus also be applied to “pure speech” without triggering elevated First Amendment scrutiny. Consider the work of commercial Denver law firms in which lawyers produce “pure speech” by authoring briefs, opinion letters, reports, and so on. It seems plain enough that CAA can apply to commercial Denver law firms without triggering heightened First Amendment scrutiny.  The First Amendment will provide no defense to commercial Denver law firms who wish to hire and fire employees based upon race, sex, creed, and sexual orientation. Or consider the Denver Symphony Orchestra. It also engages in “pure speech,” and yet it is subject to CAA and may not discriminate against musicians based upon the status categories enumerated in the statute.  DOJ’s argument would imply that the Denver Symphony Orchestra ought to have a First Amendment defense were it to decide to discriminate against women violinists. 

It is difficult, therefore, to make sense of the precise nature of DOJ’s argument. The most sympathetic reconstruction I can make of DOJ’s position is that it takes the form of a syllogism.  The major premise of the syllogism is that Phillips’s custom-made cakes convey a meaning (jointly worked out with Phillips’s clients). The minor premise is that the application of CAA to Phillips’s cakes alters the message conveyed by his cakes in a manner that compels Phillips to speak in a way that we would rather avoid. Taken together, these premises lead to the conclusion that CAA’s application to Phillips’s custom-made wedding cakes raises First Amendment questions of compelled speech that require elevated First Amendment scrutiny.

If this is in fact DOJ’s argument, it is not sufficient to establish the major premise and characterize Phillips’s cakes as “pure speech.” It is necessary also to establish the minor premise, which is that the application of CAA affects Phillips’s own speech in a manner that requires elevated First Amendment scrutiny.

There are in fact cases in which the minor premise of DOJ’s syllogism holds. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), for example, the Court considered the application of an antidiscrimination law to a privately organized St. Patrick’s day parade in Boston.  The parade organizers had refused to permit Irish LGBT marchers to participate in the parade, and a state court had concluded that this refusal violated a general Massachusetts public accommodations law. The Supreme Court reversed, because the parade was meant to make “some sort of collective point” (568) and requiring parade organizers to include marchers who wished to express an unwanted message would “alter the expressive content” of the parade. (572)

 It is important to be clear that the minor premise of DOJ’s argument does not hold merely because CAA is applied to what DOJ calls “pure speech.”  The minor premise holds in Hurley because reasonable observers would attribute the meaning of the LGBT marchers to the parade organizers.  But consider the application of CAA to commercial Denver law firms. No reasonable observer would infer that these firms endorse same-sex marriage from the fact that they comply with CAA.  CAA does not interfere with any message that the firms seek to send to their clients. Similarly, the application of CAA to the Denver Art Museum does not trigger heightened First Amendment concerns because no reasonable observer would infer that the museum endorses same-sex marriage from the fact that it complies with CAA. CAA does not interfere with any message that the museum might wish to communicate.

In the specific context of Masterpiece Cakeshop, the minor premise of DOJ’s syllogism does not hold. The Massachusetts parade organizers in Hurley sought to communicate their own message through their own parade, but Phillips is by contrast an artisan whose wedding cakes are not understood as expressing the personal messages of Phillips himself.

The point can be nicely illustrated by considering commercial sign painters. Such painters professionally produce what DOJ characterizes as “pure speech.”  CAA applies to such painters, who are, like Phillips, artisans. If CAA were to prohibit a biased commercial sign painter from refusing to accept the commission of a client seeking to produce a sign announcing Welcome to an Evening Service at the Denver First African Baptist Church, no one would read the resulting sign as conveying the personal greeting of the painter, even though his labor materially influenced the communicative properties of the sign by designing its calligraphy, presentation, and so on.  In contrast to Hurley, the message conveyed would be understood as the client’s message and not the painter’s own effort autonomously to communicate to the public.  Those who actually knew the painter to be a prejudiced man would at most conclude that he had been prohibited by CAA from choosing clients based upon race. The “deeply expressive” quality of the religious service announced in the sign is irrelevant.

Like the commercial sign-painter, Phillips is notcompelled by CAA to express any message that is attributable to him personally.  For reasons I have already stated, the reasonable observer can conclude from Phillips’s cakes only that he has been required to comply with CAA.  For constitutional purposes, therefore, the message conveyed by his cakes are attributable to his clients, not to Phillips. Because the minor premise of DOJ’s syllogism fails, heightened First Amendment scrutiny is for this reason inappropriate.

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To apply elevated First Amendment review in this case would, moreover, potentially cause great damage to our precious rights of freedom of expression.

In its first great decision explaining the nature of freedom of speech, the Court asserted in in Stromberg v. California (1931) that “[t]he maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system.”[1] 

A decade later, in what deserves to be celebrated as one of the great articulations of fundamental First Amendment principles, the Court in Thornhill v. Alabama affirmed: “Those who won our independence had confidence in the power of free and fearless reasoning and communication of ideas to discover and spread political and economic truth.  Noxious doctrines in those fields may be refuted and their evil averted by the courageous exercise of the right of free discussion.  Abridgment of freedom of speech and of the press, however, impairs those opportunities for public education that are essential to effective exercise of the power of correcting error through the processes of popular government.”[2]

From the very beginning, therefore, the First Amendment has been understood to protect freedom of expression in order to safeguard the capacity of persons to participate in the formation “of that public opinion which is the final source of government in a democratic state.”[3]  The First Amendment allows us to govern ourselves.  It is, as the Court has put it, the “guardian of our democracy.”[4]

If that guardian is to remain strong and sure-footed, we need to reserve heightened First Amendment scrutiny for occasions when core First Amendment values are threatened.  We do not debate and articulate the meaning of current events through the medium of wedding cakes.  We do not carry on national debates through the medium of flowers, cooking, jewelry or furniture.  Artisans are in this respect different from artists, who are rightly regarded as principal participants in these debates.

No doubt the contents of public opinion are affected by how our bread is baked, how our food is cooked, how our jewelry is designed, how our houses are painted, how our chairs are carved, how our flowers are arranged, and so on.  We know that what we think is affected by everything we do and experience. But this does not imply that the regulation of everything that we do and experience requires heightened First Amendment scrutiny.

No doubt all artisanal work is expressive.  But almost all human activities are expressive, in one way or another. It is actually difficult to identify human actions that have been so drained of human meaning that they can be characterized as merely mechanical. Even a bakery that sells only off-the-shelf products chooses which products to sell and which customers to serve.  To key heightened First Amendment scrutiny to the expressive properties of human action is thus to risk stretching the First Amendment to encompass everything, which means that it will protect nothing. And that could deeply demoralize and endanger our precious First Amendment rights.

It is for that reason that heightened First Amendment scrutiny has typically been reserved for laws that distort meanings conveyed in what the Court has called “media for the communication of ideas,” Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952), in which participants are understood to be self-consciously seeking to address public ideas and matters.  See Robert Post, Recuperating First Amendment Doctrine, 47 Stanford Law Review 1249 (1995).  The Court in Hurley was quite explicit that parades constitute an example of such a “medium[] of expression.” (569). It is quite clear that baking is not such a medium.

Because CAA has none of the other properties that sometimes trigger heightened First Amendment scrutiny, such as an improper purpose, the effort of DOJ to transform this case into a freedom of speech decision thus threatens the integrity of our First Amendment rights and should be rejected.


[1] Stromberg v. California, 283 U.S. 359, 369 (1931).

[2] Thornhill v. Alabama, 310 U.S. 88, 95 (1940).

[3] Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y.), rev’d , 246 F. 24 (2d Cir. 1917).

[4] Brown v. Hartlage, 456 U.S. 45, 60 (1982).

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