Masterpiece Cake Shop: Cakes, Compelled Speech, and Discrimination in Public Accomodations
What is the most important case the Supreme Court will decide this term? Working with just the cases already on the docket (there could easily be a really important case to come given the current legal climate) there are two: the gerrymandering case (Gill v. Whitford, covered in my September 23 posting) and this case, Masterpiece Cakeshop, Ltd, v. Colorado Civil Rights Commission. One of the things I have learned over the years following the Supreme Court (in fact, courts in general) is not to be too quick to judge (no pun intended): the case may look important, but the final outcome, reflected in the opinion(s), may make it less so. But Gill could end gerrymandering as we know it. Or maybe not. But Masterpiece is a landmark case any way you look at it. As blogger and lawyer Joshua Matz put it, "It's hard to overstate the importance of this case. If the Supreme Court accepts the baker's free speech or free exercise claims, it will punch a significant hole in civil rights laws nationwide. We may soon return to a world in which the idea of equal treatment in the marketplace is reserved only to privileged groups, while the rest are condemned to daily discrimination. There can be no "narrow" rulings in this case." (emphasis added). When you take the long view, I'd vote for this case being the most important of the term.
December 5; Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
The facts are simple. The owner of Masterpiece Cakeshop refused to make a cake for a same-sex couple's wedding reception, citing his religious beliefs that oppose same-sex weddings. The couple filed a complaint with the Colorado Civil Rights Commission, based on a Colorado statute that states that businesses open to the public may not refuse service based on factors such as race, sex, national origin or sexual orientation. Masterpiece was found in violation. They lost before the Colorado Court of Appeals; the Colorado Supreme Court declined to hear the case. The Supreme Court granted cert (after kicking it down the road all last term).
Now the law. As a general rule, persons engaged in public businesses (called public accommodation for legal purposes) are subject to regulation by the state. Laws requiring public accommodations to refrain from discrimination on personal characteristics generally pose no First Amendment problem, because they regulate conduct, not speech. Such laws target discrimination in the provision of commercial services: any incidental impact on speech is outweighed by the state's interest in ensuring nondiscriminatory access to commercial services.
This is Colorado's argument. The general rule set out by the Court in Employment Division v. Smith, 494 U.S. 872 (1990) states that there is no requirement for a state to carve out a First Amendment free exercise exception to a law of general applicability. The Colorado law targets Masterpiece's conduct in discriminating against same-sex couples who want to buy a cake, not any views that Masterpiece has about same-sex marriage, and any impact on speech is incidental and outweighed by the State's goal of nondiscrimination in access to goods and services.
Masterpiece's argument may surprise you. It's not (at least primarily) free exercise of religion, it's free expression. Masterpiece's owner claims that the Colorado statute compels speech because he is a cake artist, and as a cake artist his cakes are an expression, and if he is forced to create cakes for a wedding for which he does not approve, that is compelled speech in violation of the First Amenedment. Wedding cakes inherently celebrate the weddings of the participants, he argues, and by requiring him to make artistic cakes that celebrate same-sex weddings, he is being compelled to express a message that is contrary to his beliefs. Masterpiece relies on an exception to Smith carved out in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995) where the Court ruled that Massachusetts' public accommodation law could not require parade organizers to adnit a group that wanted to express gay pride to which the organizers objected. The Court stated that the organizers had a First Amendment right to choose the message they wish to express, and may not be forced to include a competing message. Masterpiece claims that producing a wedding cake is a protected First Amendment activity covered by Hurley.
Colorado's rejoinder is the Court's opinion in Rumsfeld v. FAIR, 547 U.S. 47 (2006), where the Court held that a law requiring universities to provide the same services to military recruiters that they provided to other recruiters, including hosting events and sending email notices to students, did not entail compelled speech, because the message that the univerersites objected to (anti-gay messages from the military) were clearly attributable to the military; no one would think they came from the university. Colorado argues that FAIR applies because the message of celebration comes from the couple, not from making a cake.
This is just the broad outlines of the two positions in the case, although it gives you the salient points. 52 amicus briefs have been filed, some for Colorado, some for Masterpiece, ranging from public policy groups to church-state and First Amendment legal scholars. Of course, it is all set against the Court's opinion in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), holding that same-sex couples have a constitutional right to marry. The amicus brief of the First Amendment scholars puts the issue in these terms:
The First Amendment, of course, “includes both the right to speak freely and the right to refrain from speaking at all,” Wooley v. Maynard, 430 U.S. 705, 714 (1977), but laws like Colorado’s that forbid discrimination by commercial entities do not compel speech. Heeding Colorado’s Anti-Discrimination Act does not compel petitioners to speak, to deliver a state-sponsored message, or to conform to an official orthodoxy. “There is nothing in this case approaching a Government-mandated pledge or motto that the [business] must endorse.” Rumsfeld v. Forum for Acad. & Inst. Rights, 547 U.S. 47, 62 (2006) (“FAIR”). Colorado simply insists that business owners treat same-sex couples on the basis of “equal dignity,” Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015), prohibiting discrimination against gay men and lesbians that “serves to disrespect and subordinate them,” id. at 2604. The First Amendment does not give—and has never been understood to give—commercial businesses the right to violate public accommodations laws that prohibit discrimination.
Brief of First Amendment Scholars As Amici Curiae in Support of Respondents [Colorado], at 2-3.
And as David Gans writes on the Take Care blog, "Masterpiece’s argument would distort this settled framework, undermine the authority of federal, state, and local governments to forbid discrimination and protect the equal dignity of all persons, and leave public accommodations laws in tatters. If a business can claim a right to be exempt from content-neutral bans on discrimination simply by pointing to the artistic aspects of a product or its expressive use, the critical ability of governments to protect people from discrimination will be compromised."
I have deliberately tipped my hand, which I normally try very hard not to do, but I claim an exception in this case. Gans is right: if Masterpiece's argument is accepted, "schools out" on decades, if not a century, of public accommodation law and decades of civil rights law. The exception claimed by Masterpiece would swallow any rule or statute barring discrimination, because any activity could then be deemed "expressive", leaving people free to discriminate for any reason.
I will follow this case very closely, including listening to the oral arguments, which are available a few days later. I will post on those, plus give you a link so you can hear them too. As I said, this case is a landmark.
[If you want to read any of the cited cases, just go over to Supreme Court opinions and search by year. Get analysis at LII at Cornell Law].