//  6/13/18  //  Commentary

The Court’s long awaited decision in Masterpiece Cakeshop was announced on June 4. At issue was whether a baker (Phillips) could refuse to prepare a wedding cake for a same-sex couple. The Colorado Civil Rights Commission (Commission) had held that Phillips’ refusal violated Colorado’s Anti-Discrimination Act (CADA), a neutral law of general applicability prohibiting public accommodations from discrimination based upon sexual orientation.

The Court’s decision is deliberately narrow.  It sets aside the Commission’s conclusion on the ground that the Commission’s decision-making process was tainted by hostility to religion. Justice Kennedy’s opinion was joined in full by all members of the Court except Justices Ginsburg and Sotomayor, who dissented, and Justice Thomas, who authored a separate opinion “concurring in part.”

Phillips had raised two constitutional objections to the Commission’s application of CADA: one based upon the Free Exercise Clause, and the other on freedom of speech.  Justice Thomas’ separate opinion, which was joined by Gorsuch, argued that the Commission had violated Phillips’ freedom of speech. 

In this post, I consider the status of Phillips’ freedom of speech claim after the Court’s opinion. It is especially important to understand exactly what Masterpiece Cakeshop did and did not hold, given its concluding admonition that “The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

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Phillips’ claim that his free speech rights were infringed faced the obvious objection that baking is a simple provision of services rather than a medium for the communication of ideas.  But Kennedy seems to go out of his way to hint at the insufficiency of this objection:

The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.

As Kennedy recounts the dispositive facts of the case, Charlie Craig and Dave Mullins had visited Phillips’ shop and “told Philips that they were interested in ordering a cake for ‘our wedding.’ They did not mention the design of the cake they envision.”

Phillips informed the couple that he does not “create” wedding cakes for same-sex weddings. He explained, “I'll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don't make cakes for same sex weddings.” The couple left the shop without further discussion. . . . The following day,  . . . Phillips explained that he does not create wedding cakes for same-sex weddings because of his religious opposition to same-sex marriage, and also because Colorado (at that time) did not recognize same-sex marriages.

Kennedy’s analysis begins with the unexceptional proposition that “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.” But Kennedy also acknowledges that anti-discrimination laws would quickly collapse if constitutional immunity were to extend to every provider of goods or services who interprets his work as expressing support for his customers. Kennedy thus affirms that First Amendment protections should not be interpreted so as to allow “business owners and other actors in the economy and in society to deny persons equal access to goods and services under a neutral and generally applicable public accommodations law” like CADA.

It is in this context that Kennedy explicitly accepts Phillips’ concession that “if a baker refused to sell any goods or any cakes for gay weddings . . . the State would have a strong case under this Court’s precedents that this would be a denial of goods and services that went beyond any protected rights of a baker who offers goods and services to the general public and is subject to a neutrally applied and generally applicable public accommodations law.” This concession should have made Masterpiece Cakeshop an easy case, for there were findings before the Commission that Phillips “had a policy of not selling baked goods to same-sex couples for this type of event.” 

But the Court apparently did not fully accept the Commission’s findings--perhaps because of the anti-religious taint it believed had infected the Commission’s decision-making. Kennedy explicitly implies that an evaluation of Phillips’ freedom of speech claim would have required a more fully developed record:

One of the difficulties in this case is that the parties disagree as to the extent of the baker's refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all. In defining whether a baker's creation can be protected, these details might make a difference.

Kennedy amplifies the point by referring explicitly to Phillips’ argument that in baking cakes Phillips used “his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation,” so that Phillips found it difficult to draw “a line where the customers’ rights to goods and services became a demand for him to exercise the right of his own personal expression.”   

Phillips draws a distinction between selling off-the-shelf goods and selling goods that are individually crafted by vendors. Philips concedes that CADA can require vendors to sell off-the-shelf items to all comers, but that First Amendment rights of freedom of expression should prevent CADA from requiring vendors to sell goods that they themselves have crafted so long as they believe that the goods carry meanings that they disapprove.

This same distinction was recently advanced in a case decided by the Supreme Court of Washington in 2017, Washington v. Arlene’s Flowers, in whicha florist had argued that First Amendment protections for freedom of speech immunized her from complying with Washington’s public accommodation law insofar as she would be required to supply “floral arrangements” to same sex weddings--even to the extent of replicating “a prearranged bouquet from a picture book of sample arrangements”—although she would have no objection to “selling bulk flowers and ‘raw materials’” to same sex couples. 

Phillips’ argument essentially rests on the distinction between artisans, who custom-craft goods for customers, and simple merchandisers, who sell goods that have been crafted by others.  If Phillips’ argument were accepted, every artisan who individually crafts goods or services could claim First Amendment immunity from neutral anti-discrimination laws of general application. So, indeed, could every provider of individualized services, for there is no relevant difference between individually baking a cake and offering individually tailored medical or legal services. 

Thus every carpenter, dress-maker, chef, florist, jeweler, designer, decorator, tailor, chauffeur, architect, lawyer, physician, dentist, nurse, baker, or undertaker could claim that the work of their hands or minds constituted their own personal expression, and that the First Amendment should therefore prohibit anti-discrimination laws from forcing them to sell their labor in a manner which they believed conveyed a message inconsistent with their beliefs.

There is no doubt that this would cut the heart out of antidiscrimination laws, which is why the Supreme Court of Washington rejected the florist’s claim in Washington v. Arlene’s Flowers. In Masterpiece Cakeshop, Kennedy is also quite clear that First Amendment immunities should be extended to artisans in a manner that is “sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages,’ something that would impose a serious stigma on gay persons.”  Serious stigma would be the immediate and obvious consequence of any interpretation of the First Amendment that categorically insulated the work of all artisans, of all purveyors of individualized services, from the application of antidiscrimination laws.

This is no doubt why Kennedy, in the passage I previously quoted, asserts that Phillips can claim First Amendment protections only if CADA were interpreted to require him to “design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning,” and not if CADA were interpreted to require him to sell “any cake at all.” (Emphasis added).  Kennedy’s language seems to suggest that if Phillips offered wedding cakes decorated with the word “Congratulations” to the general public, he could be required to offer the same cake to Craig and Mullins, because such a cake would not be “special,” meaning that it did not contain unique “words or images.”  Any other interpretation of the First Amendment would radically undermine the equality value that Kennedy goes out of his way to stress.

If this is the distinction Kennedy has in mind, it is essentially the difference elaborated in the Amicus Brief of Floyd Abrams, Vincent A. Blasi, Walter Dellinger, Seth F. Kreimer, Burt Neuborne, Robert Post, Geoffrey R. Stone, and Kathleen M. Sullivan, which argued that CADA did not violate Phillips’ freedom of speech so long as it did not require him “to inscribe a cake with a unique message he has not produced and would not produce for any other customer.” CADA should not constitutionally be interpreted to “compel a jeweler to create a swastika pendant if she is unwilling to make that pendant for any other buyer.” (6) 

The question of what kinds of cakes Phillips had routinely made available to the public was not made clear in the record.  It is likely to this obscurity that Kennedy was referring when he complained about the factual “difficulties in the case.”

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The reasoning of the Court contrasts sharply with that of Justice Thomas in his partial concurrence. In an elaborate and fascinating discussion, Thomas explores the symbolic importance of wedding cakes.  Wedding cakes may be “inedible,” he says, but everyone understands their thematic significance. He seems correct in this observation, but falters in the implication that he draws from this fact.  Thomas argues that “by forcing Phillips to create custom wedding cakes for same-sex weddings,” Colorado “requires him to, at the very least, acknowledge that same-sex weddings are ‘weddings’ and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to ‘bear witness to [these] fact[s],’ or to ‘affir [m] ... a belief with which [he] disagrees.’”

The thrust of Thomas’s argument is that First Amendment protections for freedom of speech control whenever neutral anti-discrimination laws are applied to the sale of goods or services that carry symbolic meaning. If carried to its logical conclusion, Thomas’ argument would imply that CADA could not require Phillips even to sell off-the-shelf wedding cakes, because that would also “acknowledge” the legitimacy of same-sex weddings. I have previously argued on this blog that this argument is fundamentally flawed, and I will not repeat those arguments here. 

It is sufficient at present to stress that Thomas’ views are categorically repudiated by the Court, which explicitly affirms that although First Amendment protections may be triggered by the requirement that a baker include “special . . . words or images” on his goods, they are not triggered by the mere fact that a baker must sell a wedding cake, even if the cake is not an off-the-shelf product.  It is inexplicable that Gorsuch could join both Kennedy’s and Thomas’s opinions.

The Court does not discuss why First Amendment principles render Thomas’ position unsustainable. Instead it rejects Thomas’ point of view because his approach would impose “serious stigma on gay persons.”  Artisans by definition provide custom goods and services.  Categorically to immunize individualized goods and services from the application of otherwise valid antidiscrimination laws would, as Kennedy explicitly reminds us, “in effect” allow artisans “to put up signs saying ‘no goods or services will be sold if they will be used for gay marriages.’”  

This result, the Court assures us, is not tolerable in a world that has come to acknowledge “that gay persons and gay couples cannot be treated as social outcasts or as inferior in dignity and worth” and that therefore has recognized that the civil rights of gay persons must “be given great weight and respect by the courts.”  Just as the First Amendment does not immunize bakers from being subject to public accommodation laws that require them to offer custom cakes for interracial marriages, of the same kind as they would offer to the public generally, even if bakers do not wish to express support for such marriages, so CADA can require bakers to offer such custom cakes to same sex marriages. 

Kennedy’s opinion requires us to think hard about the exceptional case when a public accommodation law is interpreted to require an artisan to inscribe “special . . . words or images” on his goods.

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