The Gay Wedding Cake Case Isn’t About Free Speech

(AP Photo/Brennan Linsley)

The wedding cake display at Masterpiece Cakeshop in Denver on June 6, 2013.

On December 5, the Supreme Court will hear oral argument in Masterpiece Cakeshop, the case in which a baker claims that free speech protects his right to refuse to make a cake for a same-sex wedding. Although it is impossible to know how the Court will rule, I can confidently predict that if the baker wins, the justices’ explanation will be incoherent.

There’s a lot of confusion, some of it intentional, over what this case is about. Here are the basic facts. Charlie Craig and David Mullins visited the Masterpiece bakery and looked through a photo album of custom-designed cakes. When the owner, Jack Phillips, greeted them, they told him (according to his own testimony) that they “wanted a wedding cake for ‘our wedding.’” Phillips told them that he did not create wedding cakes for same-sex weddings. They left immediately without discussing any details of their proposed wedding cake. The entire exchange lasted 20 seconds. Craig and Mullins then sued Phillips for violating Colorado’s antidiscrimination statute. Phillips claimed that he was protected by freedom of speech and freedom of religion.

To clarify the issues in Masterpiece Cakeshop, it helps to contrast it with a case now pending in the United Kingdom Supreme Court. Ashers Bakery in Belfast, Northern Ireland, refused on religious grounds to make a cake iced with the slogan “Support Gay Marriage in 2014.” It was sued for discrimination. The bakers testified, and the trial court accepted, that they would have supplied the cake if there had been no message and that they would have refused to produce the message even if the customer had been heterosexual. The court nonetheless found that refusing to write words supporting same-sex marriage was itself discrimination based on sexual orientation. The Northern Ireland Court of Appeals thinks you can commit antigay discrimination against a heterosexual customer, by refusing to produce a message supporting same-sex marriage.

This is a bizarre interpretation of antidiscrimination law. It also would clearly violate the First Amendment if it were adopted by any jurisdiction in the United States. One cannot be compelled to say what one does not believe. The Supreme Court so held in 1943, when it decided that children could not be required to say the Pledge of Allegiance: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” The Court has since explained that a person cannot be compelled to be “an instrument for fostering public adherence to an ideological point of view he finds unacceptable.” When the state does that, it “invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.”

But this is not the issue in Masterpiece Cakeshop. Unlike Northern Ireland, Colorado is not telling Phillips what words he must put on his cake. It is merely telling him that if he sells any products to heterosexual couples, he must sell the same products to same-sex couples. He is free to refuse to write “Support Gay Marriage” on any cakes that he sells, so long as he refuses that to both gay and heterosexual customers.

So this is an easy case. Phillips should lose.

Much of the argument on behalf of Phillips mischaracterizes the facts to make his case look more like Ashers Bakery. He cites evidence that Craig and Mullins wanted a “rainbow-layered” cake. “Given the rainbow’s status as the preeminent symbol of gay pride, Craig and Mullins’s wedding cake undeniably expressed support for same-sex marriage.”

But Phillips did not know that. He had no idea what they were going to ask for. He refused service before he found out anything about what Craig and Mullins wanted to buy. His arguments are a series of elaborate pirouettes around this inconvenient fact.

The brief for Phillips most directly addresses the problem this way: “When he heard [that the cake was for a same-sex wedding], Phillips immediately knew that any wedding cake he would design for them would express messages about their union that he could not in good conscience communicate.” The conduct of baking a cake has a conventional meaning. It expresses the celebration of a union. If he disagrees with that message, he claims, the law is forcing him to express a message with which he disagrees.

The strongest authority Phillips has, and the closest the Supreme Court has come to embracing this kind of logic, is Boy Scouts of America v. Dale, which declared in 2000 that forbidding the Boy Scouts to expel a gay scoutmaster “would, at the very least, force the organization to send a message, both to the youth members and the world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.”

The Court’s extension of the compelled-speech doctrine in this offhand sentence in the Boy Scouts case (which was primarily about freedom of association) has absurd implications. Federal regulations now require cars to have airbags. The federal government adopted these regulations despite the resistance of automobile manufacturers. When new cars conspicuously have airbags, this is reasonably understood as sending a message that airbags are necessary to make cars safe and that their inclusion is cost-justified. The car manufacturer may dissent from that message, but does the company have an argument that its First Amendment rights are being violated by requiring airbags? Although the Court could reinvigorate the principle it stated in the Boy Scouts case, the consequence would be anarchy. It would allow anyone to violate any law if obeying it would conventionally be taken to convey a message with which the objector disagrees.

There is a similar absurdity in Phillips’s claim that the state is discriminating on the basis of viewpoint because the antidiscrimination law, as applied, “favors cake artists who support same-sex marriage over those like Phillips who do not.” The law makes no reference at all to viewpoint. It just prohibits discrimination. It is true that the law favors those who oppose the conduct it prohibits over those who would like to engage in it. But that is true of every law. Again, there is no way to articulate the principle behind this claim that is not an invitation to chaos.

Other arguments on behalf of Phillips frame his case as only applying more narrowly. Phillips’s business is not just a bakery, but “an art gallery of cakes.” He “has been an artist using cake as his canvas with Masterpiece as his studio.” “The cake, which serves as the iconic centerpiece of the marriage celebration, announces through Phillips’s voice that a marriage has occurred and should be celebrated. The government can no more force Phillips to speak those messages with his lips than to express them through his art.”

The argument here is that custom cake decoration is inherently expressive. Phillips argues that the result should be different if Craig and Mullins had requested a premade cake.

Here again the facts intrude. Phillips has said: “Couples may select from one of our unique creations that are on display in the store, or they may request that I design and create something entirely different.” When he denied service to the couple, he had no idea which choice they would have made. Evidently, he deems “customized” the production to order of cakes that he has previously designed. When he had his very brief conversation with Craig and Mullins, they were looking at a book of such designs. Would the identical cake be “customized” if Phillips baked it in the afternoon, knowing what it would be used for, but not “customized” if had been made in the morning, before they walked into the store?

If “customization” means unique work made to order, many kinds of work are customized. Auto repair is unique work made to order. If the wedding limousine has engine trouble, would a mechanic have a First Amendment right to refuse service? How about a caterer? A hairdresser? This notion collapses the already porous distinction between Phillips’s artistic cake design and any other food that is made to order.

Phillips also claims that because Craig and Mullins easily found another baker, they must have been illicitly motivated by the desire to punish him for his ideas. But even if this were true (how could he know that?), the questionable motives of a plaintiff aren’t relevant to adjudication. If you negligently ding my car and I sue you, the court won’t care that I’m motivated by racism or other nasty motives. Even if the plaintiffs in some of these cases are trying to compel affirmation of what the Christian merchants do not believe, this has nothing to do with their legal claim.

Phillips also makes a religious freedom claim. Unlike the Hobby Lobby case, where the Religious Freedom Restoration Act told courts to consider exemptions from federal laws such as Obamacare, the Court has no authority to carve out religious exceptions to state laws. On the other hand, states must not discriminate against religion. Phillips claims that because bakers who support same-sex marriage have been permitted to refuse to make cakes quoting Biblical passages condemning homosexuality, the law “applies different rules to all expressive professionals depending on their views about same-sex marriage: supporters get a pass, but opponents get punished.” But this again confuses the facts of Masterpiece with those of Ashers Bakery. Phillips never found out what message (if any) he might be asked to convey.

So none of Phillips’s arguments work. Lately he has gotten some help. The help is clever but makes his case no better.

The surprising election of President Donald Trump was followed by the unsurprising decision of the Department of Justice (DOJ) to file its own brief supporting Phillips’s claim. The lawyers in the Solicitor General’s office are far more skillful than those of the Alliance Defending Freedom, which represents Phillips.

The DOJ brief ignores every argument that Phillips makes and starts all over with an entirely new theory of the case. The brief acknowledges, what is settled law, that the First Amendment is not violated by content-neutral laws that incidentally affect speech. For example, newspapers are not immune from antitrust laws. That means that bakers are not immune from antidiscrimination law either.

But then the brief proposes a new proviso: “an application of a public accommodations law that fundamentally alters expression and interferes with an expressive event triggers heightened scrutiny.” What’s an expressive event? “Public accommodations laws compel expression—whether speech or expressive conduct—when they mandate the creation of commissioned goods or the provision of commissioned services that are inherently communicative.” The theory follows Phillips’s brief in drawing the line at customized work, though its formulation is more deft and careful. Why the line is drawn there—and what counts as customized work—is still not explained.

The DOJ brief offers another, independent theory: “A public accommodations law exacts a greater First Amendment toll if it also compels participation in a ceremony or other expressive event.” The fact that it’s a wedding raises a special free-speech issue. The logic now seems to extend to premade cakes—and “participation” includes the sale of goods, hours before and miles away from the event. The Solicitor General tries to limit the scope of this point: “Whether governmental compulsion creates an association with an unwanted message depends on a reasonable observer’s perception of the relevant expression.”

But how is a reasonable observer to know whether a cake is custom-made? Or who made it? Wedding cakes aren’t normally accompanied by signs explaining the history of their preparation, such as whether they were based on customized designs. A wedding is not an art museum.

The claim that what matters is the “deeply expressive” character of a wedding has broad implications that DOJ does not notice. Lots of services that can be the basis of discrimination involve deeply expressive events: funerals, theaters, concerts, private schools, pregnancy, and childbirth. Anyone who participates in these events in any capacity, expressive or otherwise, would have a First Amendment right to refuse—even if they were motivated by pure, unapologetic bigotry. (If you think such bigotry has become marginal, talk to any American Muslim.) No one could know which businesses (or even which food preparation businesses) would be deemed inherently expressive. Any line courts draw will be arbitrary, since all intentional conduct expresses something. Chaos again.

Let’s not forget what this case is really about: the objection of some conservative Christians to facilitating same-sex marriage. Some of those objections can be shoehorned into a broad understanding of free speech. Others, equally strong, can’t. Are floral arrangements inherently expressive? What about renting a wedding hall, or married-student housing at religious colleges? The Court has previously held that universities were not compelled to endorse any message when they were required to provide space to military recruiters.

This is, at bottom, a problem of trying to work out a compromise between two groups, so that each of them is able to live out their ideals. It is a worthy goal. In its decision recognizing a right to same-sex marriage, the Court declared that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” (The deepest problem with the attempt to base accommodation on free speech is that it gives aid and comfort to those who are neither decent nor honorable.)

Some kind of legislative deal ought to be possible. Utah managed to do that, facilitated by the good offices of the Mormon Church. Any such accommodation will need to give clear notice of what is and is not permitted, with rules rather than vague standards, for instance exempting businesses of five or fewer employees.

This kind of bargain is beyond the institutional capacity of courts. They can’t learn through negotiation what each side’s most urgent interests are, and they can’t draw the kind of arbitrary lines that negotiations often produce.

The impulse to judicial intervention should have been resisted. The Supreme Court should dismiss its decision to hear the Masterpiece Cakeshop case as improvidently granted. The tools at its disposal are the wrong tools for this job.

Everyone’s eyes are on Justice Anthony Kennedy, who is generally thought to be the swing vote in this case. But I’m more interested in Neil Gorsuch. Gorsuch is a very good lawyer, and he is also a very partisan Republican. Those inclinations are at war with each other. If Gorsuch signs onto a nonsensical opinion that throws the law into chaos in order to reach a political result he likes, that will tell us a lot about what kind of judicial work we can expect from him in the future.

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