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Column: The Supreme Court hears from a cake
SCOTT PIEPHO
Cases and Controversies
Published: June 15, 2018
The Supreme Court’s long-anticipated decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission resolved little. Writing for the court, Justice Anthony Kennedy decided the case mostly on procedural grounds. His opinion, joined by six other justices, finds that the titular civil rights commission showed bias against baker and cake shop owner Jack Phillips when deciding if he discriminated against a same-sex couple in refusing to bake a wedding cake for them.
Phillips raised two arguments against enforcement of Colorado’s anti-discrimination act: That in ordering him to bake the cake, the commission violated his right to free exercise of religion and that baking the cake would constitute government-compelled speech offending his free speech rights.
I predict that when the court finally resolves one of these cases on the merits, it will do so mostly in how it addresses the compelled speech claim. In so doing the court will ask, what does a wedding cake mean and when does it mean it?
(The free exercise claim will function as an add-on because conservatives on the court don’t appear to have the votes to overrule Employment Div. v. Smith which should bar such claims.)
The compelled speech claims were made more interesting by the Colorado commission’s treatment of religious discrimination clams raised against a number of bakers by William Jack an opponent of same-sex marriage. Jack went to bakers and requested custom cakes bearing messages against same-sex marriages, then brought discrimination claims when he was denied. All those claims were denied by the commission.
The justices in the majority agreed that the way the commission distinguished the cases showed that they showed more deference to free speech rights of the bakers in Jack’s claims than they showed to Phillips. How the concurrences make the distinctions shows how vital the metes and bounds of the compelled speech claims will be to honoring rights of conscience while also preserving the integrity of anti-discrimination laws.
Justice Gorsuch argues that the cases are the same—that all the bakers refused to engage in expressive conduct regardless of the identity of the customer. He described Phillip’s decision as refusing to provide a cake celebrating a same-sex wedding.
Justice Kagan would hold that the cakes ordered by Jack were expressive whereas the cake requested from Masterpiece Cakeshop is not.
Justice Thomas concurring in part and in the judgment, argues that a wedding cake symbolizes the celebration of a marriage. More importantly, he highlights the personal involvement Phillips has with his customers when he creates a wedding cake—from meeting with the couple to agree on a design to delivering the cake at the reception site He argues that that level of involvement would reasonably be seen as an endorsement of the wedding, contrary to Phillips’ views.
I find Gorsuch’s analysis disquieting because he elides who is doing the speaking. A wedding cake can only symbolize celebration of a same-sex wedding if it is used in conjunction with such a wedding. Until then, it is no gayer than any other wedding cake.
If something becomes symbolically charged simply by its placement in the context of a same-sex relationship, then any business whose stock in trade could be placed in the context of a same-sex relationship could access the exception to anti-discrimination laws.
Lots of things can symbolize celebration of a wedding, from rented tuxedos to chocolates sent home with guests to the accommodations for the couple’s honeymoon. To take things farther, the American mythos imbues heavy symbolism to the image of a young heterosexual couple taking possession of a first home.
If every business that provides things that can be used as part of the symbolic I am concerned that Gorsuch’s analysis deems a person to have endorsed a same-sex wedding as long as he supplies something that is generally understood to symbolize the celebration of a wedding.
Justice Thomas’s analysis would lead to a cabined exception that does not threaten to swallow all of anti-discrimination law. The weight he places on the personal involvement of Phillips in creating, delivering and displaying the cake is key. If compelled speech is to offer a safe harbor from anti-discrimination laws, it can only do so when the entity accused of discrimination is being compelled to do the actual speaking, not simply when they provide some potentially symbolic good or services.
While Justice Kennedy notes that laws like Colorado’s protect the equal dignity of gay people in the marketplace, the most important stakes in these cases lie preventing spillover into areas of economic harm like employment or housing discrimination. Kennedy, Kagan and Thomas provide the building blocks for a well-cabined right-of-conscience exception. Justice Gorsuch’s analysis carries within it the seeds of destruction for anti-discrimination laws.