//  12/7/17  //  Commentary

Decades ago, in Newman v. Piggie Park, the Supreme Court ruled that the First Amendment does not give commercial businesses a license to discriminate, rejecting a BBQ restaurant’s claim that it had a constitutional right to discriminate against African American customers based on the owner’s religious beliefs.  During his tenure on the Court, Justice Anthony Kennedy has recognized that “[p]redominantly commercial organizations  are not entitled to claim a First Amendment associational or expressive right to be free from the anti-discrimination provisions triggered by the law.”  The fundamental question in Masterpiece Bakeshop v. Colorado Civil Rights Commission is whether the Justices will carve out an exception to that principle that would license businesses to discriminate against same-sex couples and reduce them to second-class status. 

After 90 minutes of oral argument on Tuesday, it appears virtually certain that Justice Kennedy will cast the deciding vote in the case.  But Justice Kennedy, who is both the Supreme Court’s greatest champion of freedom of expression and its great champion of the equality and dignity of gay men and lesbians, seemed torn between contradictory impulses.           

During the argument, Kennedy told U.S. Solicitor General Noel Francisco that Francisco’s view of the First Amendment would empower commercial businesses to “boycott gay marriages.”  And Francisco seemed to agree, saying, in response to a question from Justice Kennedy, that a business owner could put up a sign that “say[s] he does not make custom-made wedding cakes for gay weddings.”  As Kennedy rightly pointed out in response, that would be an “affront to the gay community.”  And Kennedy then voiced worries that a ruling for Masterpiece Cakeshop would lead to “bakers all over the country receiv[ing] urgent requests: [p]lease do not bake cakes for gay weddings,” with the result that “more and more bakers begin to comply.”  And there’s no reason to think these “urgent requests” would be limited to weddings and cakes:  same-sex couples (and others) could be subject to all manner of discrimination in all aspects of their lives.

But Justice Kennedy also told Frederick Yarger, Colorado’s Solicitor General, that “tolerance is essential to a free society” and that “the state in its position here has been neither tolerant nor respectful of [the baker’s]  religious beliefs.”  Kennedy suggested the possibility of an accommodation, noting his assumption that “other good bakery shops were available.”  Similar claims, of course, could also have been made in the Piggie Park case.  The government did not tolerate Maurice Bessinger’s religious belief that he could not serve African Americans.  That’s because the price of tolerance in this context is to license discrimination and subject minorities to second class status.  It leads directly to signs that say “Whites Only,” “Colored Water Fountains,” and “No Wedding Cakes for Same-Sex Couples.” 

It didn’t matter in Piggie Park that African Americans could go elsewhere for BBQ.  Piggie Park’s act of discrimination deprived African Americans of their equal dignity, and that demanded redress.  The same is true in Masterpiece Cakeshop

Justice Kennedy also questioned whether the refusal to serve same-sex couples can be equated to a discriminatory act.  He asked David Cole of the ACLU, who represented the same-sex couple, about a business owner that “has nothing against gay people” but “do[es]n’t think they should have a marriage because that’s contrary to my beliefs. . . . It’s not their identity; it’s what they’re doing.”  But, as the Court’s opinion in Christian Legal Society v. Martinezmakes clear, when it comes to the rights of gay men and lesbians, the Court “has declined to distinguish between status and conduct.”  A tax on yarmulkes is a tax on Jews; so too here, a refusal to serve same-sex couples is discrimination on account of sexual orientation.  There is simply no daylight between status and conduct.

Despite Kennedy’s desire to embrace both tolerance and equality, here he has to choose.  But the choice should be an easy one.   

The First Amendment does not give business owners a license to discriminate.  As the Supreme Court has repeatedly held, the government has broad authority to regulate conduct in a content-neutral manner, including by prohibiting discrimination.  As Chief Justice John Roberts made the point in FAIR v. Rumsfeld, “Congress . . . can prohibit employers from discriminating on the basis of race.  The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.”  Discriminatory refusals to serve cannot be treated as expressive conduct shielded from regulation by the First Amendment.  Otherwise, Piggie Park would have been decided the other way.

Business owners, like customers, are entitled to be treated with dignity, and to speak out on issues that concern them.  But business owners do not have a free pass to ignore content-neutral laws that prohibit conduct, such as outlawing discriminatory business practices.  Robust protection of speech does not require gutting laws that help ensure that all persons—regardless of race, gender, religion, or sexual orientation—can buy the good and services they desire, free from discrimination.     

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George Washington University Law School

Robert W. Tuttle

George Washington University Law School

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People For the American Way