A bakery shop owner’s refusal to create a wedding cake isn’t the kind of controversy one expects to end up before the Supreme Court. Yet on Tuesday, the justices will hear oral argument involving that very issue—and the case is set to be a culture wars blockbuster.
Masterpiece Cakeshop v. Colorado Civil Rights Commission is widely, and rightly, regarded as a major lawsuit that stands to sharpen and define the line between two competing interests: social and religious conservatives on one side, and the LGBTQ community and its allies on the other. Jack Phillips, the owner of a Colorado bakery, claims that forcing him to create a cake for a gay wedding impinges on his right to freedom of expression under the First Amendment; while Charlie Craig and David Mullins, a gay couple who wanted a cake from the bakery, argue that their right to be free from discrimination is the more powerful imperative. Who’s right?
Craig and Mullins won their case in both a state civil rights division hearing and then before the Colorado Court of Appeals, but a Supreme Court verdict is not easy to predict. There are strong and similar interests on both sides: Freedom of expression is important to protecting individual liberty, but so are anti-discrimination laws.
In this case, Craig and Mullins have the stronger claim. There is a way, though, for the Supreme Court to side with the couple while still recognizing Philips’ right to free expression—a compromise that allows Phillips to express his views without barring the door to customers. Will the court be wise enough to see it?
The story of the most important cake in America is as follows: In 2012, Craig and Mullins, along with Craig’s mother, Deborah Munn, entered Phillips’s Lakewood, Colorado, bakery to discuss their need for a wedding cake to celebrate their impending commitment ceremony. At this point, Colorado had not yet recognized same-sex marriages—but nationwide, public opinion had shifted sharply in favor of the idea. Before they could get into the details about what they wanted, though, Phillips abruptly stopped the conversation. He told the couple that he wouldn’t create a cake for a same-sex commitment ceremony. When Munn called Phillips the next day for an explanation, he said that he wouldn’t participate in an “illegal” event, and, that participation would violate his Christian beliefs. The event was not illegal, since there was no law banning gay couple from having a wedding ceremony—and Craig and Mullins were outraged.
The couple then charged Phillips with violating the state’s antidiscrimination law, which prohibits discrimination based on sexual orientation in places of public accommodation. The Colorado Civil Rights Commission, which is charged with enforcing the state’s civil rights laws, found the claim meritorious, and joined the lawsuit. Phillips defended his actions under the First Amendment, claiming that, as applied in this case, the anti-discrimination law violated his right to free expression. The case eventually reached the Colorado Court of Appeals, which sided with the couple, finding that baking a cake for a same-sex wedding ceremony was not expressive conduct protected by the First Amendment. Now the Supreme Court has the case.
The suit looks like one that Phillips might have more successfully defended under a different provision of the First Amendment: freedom of religion. In about half the states in the U.S., that would be the stronger claim. But in states like Colorado that don’t have laws granting special protections to actions grounded in religious belief, there’s a simple rule for determining whether one can successfully object to a law that violates the freedom of religion: As long as a law doesn’t target a particular religion, but applies to everyone, the fact that it happens to burden someone’s religious beliefs doesn’t give rise to a good religious freedom claim. So, Phillips is left to argue that his action in designing wedding cakes is the sort of expressive conduct that the First Amendment was designed to protect—no different, legally speaking, from refusing to salute the flag, or creating a painting that some might see as subversive. By compelling him to create a cake for a same-sex wedding, he claims, Colorado is making him send a message that goes against his conscience.
Both sides can point to Supreme Court cases that seem to be in their favor. In a 1995 case involving a gay rights group that wanted to march in Boston’s St. Patrick’s Day parade, the court in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, said that parades carried an expressive message and that the private organizers were therefore free to control the content of that message by excluding the group—notwithstanding Massachusetts’ anti-discrimination law. In another case, the court in 2000 allowed the Boy Scouts to establish their own rules for membership, even though those rules excluded openly gay members, arguing that the organization had the right to decide with whom it wanted to associate. (Freedom of expression and association are closely connected First Amendment rights.)
But in a more relevant case from 1996, Rumsfeld v. Forum for Academic and Institutional Rights, the justices didn’t buy the freedom of expression argument. When a group of universities wanted to exclude military recruiters from campus because of the military’s “don’t ask, don’t tell” policy on sexual orientation, the court rejected the schools’ claim that they were being forced to carry a message they disagreed with. The justices found that no one would reasonably believe that allowing the military to set up shop on campus reflected the schools’ support of the policy—only that they were complying with the law that required them, at pain of losing federal funding, to host the recruiters.
A thread running through these cases is the focus on whether an observer would reasonably attribute the message to the person objecting to it. In the cake case, the Colorado Court of Appeals cited the military recruitment case, and ruled that it’s unlikely anyone would assume Phillips or his shop was endorsing gay marriage: “By selling a wedding cake to a same-sex couple, Masterpiece does not necessarily lead an observer to conclude that the bakery supports its customer’s conduct.” The court distinguished the situation from a case where Phillips would have been asked to write a specific message on the cake—say, for instance, “Celebrating the Union of Charlie and David!”—which really would raise serious problems of government-compelled speech. (The philosophy professor John Corvino deftly addressed the difference between these two cases in a recent article for the New York Times.)
So, the Supreme Court might decide the cake case either way, based on precedent. But there are compelling reasons for the couple to win, even if the court thinks Phillips’ refusal to sell a cake implicates his First Amendment rights. That’s because there are important rights on both sides. A big part of the reason for protecting freedom of expression is because it furthers liberty and autonomy. But anti-discrimination laws do the same thing. Protections against discrimination are not just about the inconvenience and cost of being turned out of a place of business—there’s also a dignitary harm that a prospective buyer suffers when told, face-to-face, that a commercial establishment generally open to the public won’t provide an advertised service. Justice Anthony Kennedy, who sits at the fulcrum of the Supreme Court, has consistently been protective of the right to personal dignity, which he understands to be part of the Constitution’s guarantee of liberty.
The justices should be looking for a compromise that recognizes the importance of both interests, and tries to find some ground on which the parties might meet. But that ground can’t be the outright refusal of a business owner to pick and choose among prospective customers, because that way lies legal chaos. There’s no principled way to limit this “right of refusal” to cases involving sexual orientation, or to services connected to weddings. If he wins his case, Phillips might just as easily refuse to create a cake for an interracial wedding, or for one involving a divorced person. It’s hard to imagine any court countenancing such conduct.
There is a way to validate business owners’ rights to free expression, within limits: They can certainly broadcast their views on same-sex marriage and any other issue they care about, but they can’t actually refuse to serve anyone for those reasons. Imagine how the case would have been different had Craig and Mullins been able to go online to learn that Phillips—on his bakeshop’s website—had declared himself “guided by Christian principles,” or had written, more directly, “I believe that marriage is the union of one man and one woman.” They likely would have sought out a more accommodating cake shop, since no one wants their wedding serviced by someone who doesn’t believe in what they’re doing. Craig and Mullins might have taken a similar step if Phillips had posted a sign with such a message in the store’s window, but that’s more awkward—especially if it’s inside the store and couldn’t therefore have been seen until the parties were face-to-face. (A brief filed by the ACLU made a weak version of this point, arguing that owners can post a sign saying that providing services doesn’t indicate agreement with the anti-discrimination law.)
This is a controversial compromise. The anti-discrimination side sees such messages as Philips might broadcast as unwelcoming, and therefore potentially undermining the anti-discrimination imperative. They might have the effect of driving away business from same-sex couples just as surely as actual discrimination. And Phillips’ supporters don’t like the “say it, but don’t do it” idea, either, because they see the compromise as “outing” him as antagonistic to the LGBT community. A group of legal scholars argues that Phillips and others with similar views might not want to broadcast their idea that same-sex marriages are sinful.
But the alternative, of course, is that business owners like Phillips can ambush prospective customers who have no way of knowing they’re about to be turned away. If Phillips’s conviction is so strong, it seems reasonable for him to take steps to reduce the possible embarrassment and loss of dignity that a refusal would cause. Of course, he doesn’t have to do this. But he can’t refuse service to customers, either.
If this approach were followed to its logical end point, people would patronize only businesses that shared their views and philosophy. But that’s a fact of life anyway; some people shop at Walmart, others at Whole Foods. There’s a combination of economic, political and social reasons for this. My proposal would just mean one more thing for people choosing a wedding business to consider, not the end of social harmony in America.
This approach could be useful, too, in states that have religious freedom laws as well as anti-discrimination law—Illinois and New Mexico, for example. Those states might allow religious objections to outweigh government interests in certain cases, but they typically do not allow someone to ignore anti-discrimination laws in the name of religion. They do, however, allow those who have religious objections to dealing with customers in certain contexts to make their views known. That’s the right balance to strike in these emotional, highly personal, cases.
If the Supreme Court finds a way to strike a compromise like this, I’d say it calls for a celebration. Cake, anyone?
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