Cross-posted from Dorf on Law

During the oral argument in the Masterpiece Cakeshop case, Solicitor General Noel Francisco repeatedly used the following hypothetical example to make the point that a baker's creation of a custom cake (regardless of whether it contains an articulate message) is speech: Could the government "compel an African American sculptor to sculpt a cross for a Klan service?", the SG asked. And if not, doesn't that show that sculpting for a ceremony to which one objects--whether the medium is wood for a cross or dough for a cake and whether the ceremony is a wedding or a cross-burning--is expression to which the compelled speech doctrine applies?

The argument in the case was wide-ranging, with various outcomes possible. For at least some justices the case poses difficult line-drawing problems. But the SG's cross example does not do the work that he seems to think it does. Here I'll highlight three objections to it. One of them was offered during the oral argument itself by the lawyers opposing the baker, but went by quickly enough that it might not be sufficiently appreciated. The other two objections are my own contribution.

Objection 1: Ideology is not a forbidden ground in anti-discrimination law.

After a little cross-talk, attorney Frederick Yarger (arguing for Colorado) gave what should have been an obvious objection to SG Francisco's example: Colorado's anti-discrimination law does not forbid retailers from denying service to customers based on their ideology. Indeed, neither does anti-discrimination law generally. Thus, when the hypothetical African American sculptor refuses service to the Klan based on disagreement with the message of a Klan "ceremony," the sculptor does not violate the law and so there is no occasion for his free speech to be infringed.

Curiously, the Solicitor General didn't seem to realize this.

Neither did Justice Gorsuch, who later used a variation of the SG's cross example. He asked David Cole (arguing for the same-sex couple) to imagine a baker who bakes a cake with a red cross on it for an anniversary celebration for the Red Cross but not for the Klan. Justice Gorsuch chose this example because he was pushing back against Cole's suggestion that there would be no valid free speech objection if the baker or seller of other goods was willing to sell the same product to one customer but not another. The point Justice Gorsuch was trying to make with the example was that the speech content of the sale could differ based on the purpose for which the product will be used.

That's a fair point, but the example doesn't work for Justice Gorsuch anymore than it worked for SG Francisco, because Colorado's anti-discrimination law doesn't forbid retailers from discriminating against the Klan based on its ideology. So there's no conflict between the state law and free speech here. And just as Yarger pointed out the basic error when Francisco committed it, so Cole pointed it out when Justice Gorsuch committed it.

I say this error is curious, because it would have been relatively easy for either Francisco or Gorsuch to construct a better hypothetical. Indeed, Justice Breyer bailed his colleague out by modifying Gorsuch's hypothetical example so that it's not the Klan that wants the cross cake but someone who has a religious belief that overlaps with Klan ideology. Religious discrimination is forbidden by Colorado's anti-discrimination law, so in this variant there is a real conflict.

Alternatively, we could modify the Francisco/Gorsuch examples by considering a state public accommodations law that does forbid discrimination based on a customer's ideology or, more broadly still, that imposes the equivalent of common carrier obligations on merchants.

Because we can tweak the SG's and Justice Gorsuch's Klan examples to make them work better for the baker's argument, my objection 1 is to the rigor of their preparation, not to the substance of their position. Next, however, I want to come to two more fundamental objections.

Objection 2: The line between custom goods and off-the-shelf goods does not distinguish between speech and non-speech.

At the very beginning of the oral argument, attorney Kristen Waggoner, representing the bakers, conceded that her clients would not have a valid free speech objection to selling "a pre-made cake" off the shelf. Various justices who were sympathetic to her side in the case tried to take back this concession at various points in the argument by pointing out that they still might have an objection to compelled association with viewpoints with which they disagreed, but both she and SG Francisco seemed fairly committed to the distinction between custom goods and bespoke goods.

Their motive for wanting to draw the distinction is understandable: If merely selling off-the-shelf goods to a same-sex couple who wants to use those goods for a same-sex commitment ceremony triggers a valid free-speech claim, then there is no logical stopping point to the principle. The owner of a gas station could refuse service to the limousine taking a same-sex couple to their wedding on such grounds. Etc. Thus, it is perfectly understandable that Waggoner and Francisco were trying to cabin their proposed free-speech exception.

But here's the problem: The difference between custom goods and off-the-shelf goods doesn't have much if anything to do with the difference between expression and non-expression. Suppose that a same-sex couple came to Masterpiece Cakeshop on the day of their ceremony (because the cake they had purchased from a different vendor was accidentally destroyed, let's say). Suppose further that Masterpiece happened to have in the display case a cake that the couple wanted. According to Waggoner, it would be perfectly fine for the state to compel the cakeshop to sell that cake to the same-sex couple; there's no valid free speech objection. However, now suppose that instead of the display cake for that day, the couple wanted a cake identical to the display cake for a ceremony two weeks later. Now Waggoner says that the bakers' free speech is implicated.

The argument of Waggoner and the SG in support is that baking a high-end wedding cake is the creation of a work of art, i.e., constitutionally protected expression. When the state tells the cakeshop that it must sell the cake already on the shelf the state does not compel expression. The act of selling is not expression. However, according to this argument, if the baker has to bake a new cake, that's now creation of a work of art, i.e., constitutionally protected expression.

Does that make any sense? It might make sense if, at the time that the baker made the cake now on the shelf he had one set of beliefs that were expressed by the baking of that cake but he has since changed his beliefs so that now baking an identical cake expresses views he does not hold. But that's plainly untrue. The baker would be perfectly happy to bake a new identical cake for an opposite-sex couple's wedding. That tells us that--even assuming that there is some sort of protected expression involved in the baking of a high-end wedding cake--there is nothing about the act of creating the cake that expresses a message inconsistent with the baker's beliefs. The only thing that makes the creation of a new cake objectionable to the baker is the fact that it will be used for a same-sex commitment ceremony. But that's true of the off-the-shelf cake too, and yet Waggoner conceded that the baker could be legally obligated to sell that one without any infringement on the baker's free speech.

So the difference between custom and off-the-shelf cakes doesn't do any of the work that Waggoner and SG Francisco seem to think it does.

Objection 3: The example proves too much

In any event, even though SG Francisco endorsed the distinction between custom goods and off-the-shelf goods (in answering a question from Justice Kennedy about whether the baker could put a sign in his window saying he does not bake cakes for gay weddings), his example does not actually rely on the distinction. Recall that the Solicitor General thinks that an African American sculptor should be able to refuse to sculpt a cross for a Klan ceremony (presumably a cross-burning). The power of this example, such as it is, doesn't seem to have anything to do with the fact that sculpting is an art form or that the cross is custom made.

Suppose that the sculptor happened to have already sculpted a cross and had it for sale in his shop. Wouldn't he be equally horrified when the Klansmen came into the shop to purchase it for their cross-burning? Or suppose that a group of klansmen came into a linen store owned by an African American merchant. The klansmen want to purchase thirty white sheets to use at their next rally. Isn't the merchant's objection to selling them those sheets just as powerful as the objection of the sculptor in the SG's hypothetical example?

In each case, the real objection of the merchant is that he does not want to be implicated in the hateful message of the Klan. That's an objection worth vindicating, but as noted above, one can vindicate it without any necessary implications for the Masterpiece Cakeshop case, because anti-discrimination law doesn't protect the Klan. At least not yet.

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