//  11/1/17  //  In-Depth Analysis

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court will decide whether a commercial baker has a First Amendment right to refuse to serve same-sex couples.  Insisting that its cakes are a form of art, Masterpiece argues that Colorado’s public accommodations law impermissibly compels speech, and that the company is entitled to an exemption from the state’s anti-discrimination law.  This is an incredibly sweeping argument that, if successful, would radically revise the meaning of the First Amendment and create a gaping hole in public accommodations laws.  The Supreme Court should reject this argument.  The First Amendment does not give commercial businesses a license to discriminate.

Yesterday, my organization, the Constitutional Accountability Center, filed a friend-of-the-court brief in Masterpiece, on behalf a distinguished group of First Amendment scholars, that demonstrates that Masterpiece’s claim has no basis in First Amendment first principles, is inconsistent with decades of Supreme Court precedent, and would open the door to a host of new claims by businesses for constitutional exemptions from civil right laws.  The brief, which is available here, was joined by Professors Carlos Ball, Micah Berman, Ashutosh Bhagwat, Caroline Mala Corbin, Charlotte Garden, James Grimmelmann, Leslie Kendrick, Gregory Magarian, Tamara Piety, Neil Richards, Kim Roosevelt, David A. Strauss, and Rebecca Tushnet.

As the brief demonstrates, accepting Masterpiece’s argument would wreak havoc on long established First Amendment principles, giving businesses a right to disregard content-neutral regulations of their conduct.  The First Amendment framework, set forth in decades of precedents, gives the government broad leeway to regulate conduct, when it does so through content-neutral rules, such as Colorado’s anti-discrimination law prohibiting businesses from refusing to serve customers on the basis of their protected characteristics, including race, sex, religion, or sexual orientation.  Based on these principles, the Supreme Court has repeatedly upheld public accommodations laws against First Amendment attack.  Masterpiece’s argument would distort this settled framework, undermine the authority of federal, state, and local governments to forbid discrimination and protect the equal dignity of all persons, and leave public accommodations laws in tatters.  If a business can claim a right to be exempt from content-neutral bans on discrimination simply by pointing to the artistic aspects of a product or its expressive use, the critical ability of governments to protect people from discrimination will be compromised. 

The Supreme Court should not go down this road.  Rather, by applying First Amendment principles that have been invoked by Justices across the ideological spectrum, it should uphold Colorado’s public accommodations law as a content-neutral measure that helps realize our constitutional values of equality for all persons.

Here is the brief’s summary of argument:

Charlie Craig and David Mullins entered Masterpiece Cakeshop, Ltd., a retail business in Lakewood, Colorado, that sells wedding cakes and other baked goods to the general public, seeking to buy a wedding cake.  But before they could even discuss what their cake would look like, the owner of Masterpiece Cakeshop told them that he would not sell them one.  According to the owner, he “does not create wedding cakes for same-sex weddings.”  Pet. App. 65a.  As the court below held, this discriminatory conduct violated Colorado’s Anti-Discrimination Act, which makes it “unlawful for a person . . . to refuse . . . to an individual or group, because of . . . sexual orientation . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation,” Colo. Rev. Stat. § 24-34-601(2)(a).

Insisting that Colorado’s antidiscrimination law must give way, petitioners offer a sweeping view of the First Amendment, claiming that the cakes they bake are a form of art entitled to special protection, and that Colorado’s antidiscrimination law compels their speech in violation of the First Amendment.  For that reason, they insist that the Constitution exempts them and other businesses like them from having to comply with neutral and generally applicable state antidiscrimination laws.  Petitioners are wrong.  Accepting their arguments would wreak havoc with established First Amendment principles.  Their claim both “exaggerates the significance of the expressive component” of the cakes they bake and “denigrates the importance of the rule of law [they] violated.”  FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411, 430 (1990).

The First Amendment, of course, “includes both the right to speak freely and the right to refrain from speaking at all,” Wooley v. Maynard, 430 U.S. 705, 714 (1977), but laws like Colorado’s that forbid discrimination by commercial entities do not compel speech.   Heeding Colorado’s Anti-Discrimination Act does not compel petitioners to speak, to deliver a state-sponsored message, or to conform to an official orthodoxy.  “There is nothing in this case approaching a Government-mandated pledge or motto that the [business] must endorse.”  Rumsfeld v. Forum for Acad. & Inst. Rights, 547 U.S. 47, 62 (2006) (“FAIR”).  Colorado simply insists that business owners treat same-sex couples on the basis of “equal dignity,” Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015), prohibiting discrimination against gay men and lesbians that “serves to disrespect and subordinate them,” id. at 2604.   The First Amendment does not give—and has never been understood to give—commercial businesses the right to violate public accommodations laws that prohibit discrimination.     

Public accommodations laws “affect what [commercial businesses] must do . . . not what they may or may not say.”  FAIR, 547 U.S. at 60.  Such laws regulate the market, not the marketplace of ideas.  “The compelled speech to which [Masterpiece] point[s] is plainly incidental to the . . . regulation of conduct, and ‘it has never been deemed an abridgement of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.”  Id. at 62 (quoting Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949)).   

Rather, this Court’s cases have consistently upheld the government’s broad power to enact generally-applicable, content-neutral rules, even when such restrictions may have an incidental impact on expression.  See, e.g., Sorrell v. IMS Health Inc., 564 U.S. 552, 567 (2011) (“[T]he First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.”).  On the basis of these principles, this Court has repeatedly rejected First Amendment challenges to prohibitions on discrimination contained in federal, state, and local public accommodations laws.  See, e.g.Newman v. Piggie Park Enters., Inc., 390 U.S. 400 (1968); Roberts v. U.S. Jaycees, 468 U.S. 609 (1984); Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537 (1987); N.Y. State Club Ass’n v. City of New York, 487 U.S. 1 (1988).  Even Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995), on which Masterpiece relies, recognizes that public accommodations laws “do not, as a general matter, violate the First or Fourteenth Amendments.”  Id. at 572.  Discriminatory refusals to serve cannot be treated as expressive conduct shielded from regulation by the First Amendment; otherwise, this Court’s public accommodations cases would have come out the other way.

The fact that baking cakes for sale to the public—like other commercial endeavors—may have some creative and artistic aspects does not change the general rule or give Masterpiece Cakeshop and other commercial businesses like it “special protection from governmental regulations of general applicability simply by virtue of their First Amendment protected activities,” Arcara v. Cloud BooksInc., 478 U.S. 697, 705 (1986).  The press is not entitled to special privileges other businesses lack by virtue of the First Amendment, see Citizens United v. FEC, 558 U.S. 310, 352 (2010); Minneapolis Star & Tribune Co. v. Minn. Comm’r of Revenue, 460 U.S. 575, 581 (1983); neither are commercial bakers and other businesses that sell their services to individuals planning their wedding day.  Baking a cake may have artistic aspects—much like dancing, making music, or designing furniture or clothing—but that does not mean a commercial baker is free to violate content-neutral rules regulating his business. See Ward v. Rock Against Racism, 491 U.S. 781 (1989) (music); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (nude dancing); City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) (same).   

Petitioners hang their hat on two cases in which this Court held that public accommodations laws could not be constitutionally applied to noncommercial entities—a parade in one instance, see Hurley, 515 U.S. at 572, and a private membership organization in the other, see Boy Scouts of Am. v. Dale, 530 U.S. 640 (2000).  The Court reasoned that, in each case, “forced inclusion . . . would significantly affect [the group’s] expression,” id. at 656, because “the complaining speaker’s own message was affected by the speech it was forced to accommodate,” FAIR, 547 U.S. at 63.  Masterpiece cannot make a similar showing. Colorado’s statutory requirement that a public business must serve all customers without regard to race, gender, creed, or, as in this case, sexual orientation, “does not sufficiently interfere with any message of the [business],” id. at 64.  Masterpiece’s argument would rip Hurley and Dale from their moorings, inventing a new, sweeping exemption from neutral antidiscrimination laws for commercial businesses.     

Petitioners’ theory—which has no logical stopping point—would not only distort established First Amendment principles, it would also open the door to a host of new claims for constitutional exemptions.   Were petitioners to prevail on their claim that they are entitled to an exemption from Colorado’s Anti-Discrimination Act on the basis that the goods they sell have an “expressive component,” countless other businesses will argue that they too are entitled to exemptions, resulting in a “gaping hole in the fabric of those laws,” Superior Court Trial Lawyers Ass’n, 493 U.S. at 431-32.  Furthermore, if petitioners were to prevail here, the same arguments could be made by wedding vendors and other service providers who wish to refuse to serve interracial couples, or couples of a particular religious faith, such as Christian couples.  If merely serving an individual implies an expression of views about the individual’s core traits like race, religion, or sexual orientation, any vendor could refuse to serve any member of the public on that basis and cloak such discrimination as freedom of expression.

In short, a straightforward application of petitioners’ theory would inevitably corrode public accommodations laws, which have for centuries ensured that businesses do not turn away their customers for discriminatory reasons.  The First Amendment does not require that result.

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