Next week, the Supreme Court will hear arguments in the potentially landmark case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case involves the constitutionality, as applied to a specific factual situation, of the Colorado Antidiscrimination Act, which makes it unlawful for any business in Colorado to deny to any person, because of race, creed, color, sex, sexual orientation or national origin, the full and equal enjoyment of the business’ goods, services or facilities.
In this case, Jack Phillips, the owner of Masterpiece Cakeshop in Lakewood, Colorado, refused to sell a wedding cake to Charlie Craig and David Mullins, a same-sex couple. Phillips maintains that he cannot constitutionally be required to provide such a cake, because for the government to compel him to do so would violate both his freedom of speech and freedom of religion rights under the First Amendment.
On both of these claims, Phillips is wrong.
The free speech claim is based on the notion that by requiring Phillips to sell a wedding cake to Craig and Mullins the state is compelling him to express a message with which he disagrees – that is, approval of same-sex marriage. What are we to make of this claim?
In two types of situations, the Supreme Court has held that for the government to compel an individual to convey a message with which he disagrees violates the individual’s rights under the First Amendment.
First, in some cases the Court has held that the government cannot constitutionally compel individuals to express a specific message that is dictated by the government itself. This was true, for example, when the Supreme Court held in the 1940s that the government cannot constitutionally compel school children to recite the pledge of allegiance, and it was also true in a later case in which the Court held that the state cannot constitutionally forbid an individual from putting tape over the state’s motto on the license plate on his car because he did not want people to think he personally endorsed the state’s motto.
The Masterpiece Cakeshop case is clearly not governed by these precedents, because in this situation the state is not itself compelling Phillips to endorse a specific message dictated by the state itself.
Second, in other cases the Court has considered claims that laws having nothing directly to do with free speech nonetheless violate the First Amendment because they have the incidental effect of interfering with the exercise of what an individual claims to be her First Amendment rights. Suppose, for example, an individual is arrested for speeding and she claims that she was speeding to protest the speed limit. Does her conviction for speeding violate the First Amendment?
As a general matter, the Supreme Court has rejected such claims, recognizing that to allow them would lead to chaos, because if such claims were permitted then all sorts of individuals could maintain that their otherwise unlawful acts were intended to be expressive. Restaurant owners, for example, could claim a right to refuse to serve African-Americans because serving them would imply that they approve of desegregation, and law schools could refuse to admit women because admitting them would suggest that they think women are capable of being lawyers. And on, and on, and on.
In a few cases, though, the Supreme Court has accepted such claims, even though the law had only an incidental effect on free speech. In one case, for example, the Court held that a law forbidding discrimination on the basis of sexual orientation could not constitutionally be applied to require an organization putting on a St. Patrick’s Day parade to permit gay rights organizations to participate in the parade, because their participation would convey the false impression that the organizers of the parade supported gay rights. And in another case, the Court held that a law forbidding discrimination on the basis of sexual orientation could not constitutionally be invoked to compel the Boy Scouts to permit gay scoutmasters, because the presence of gay scoutmasters would directly contradict a central precept of the Boy Scout’s educational message, which was that homosexuality was immoral.
What distinguished those cases from the others, and what led the Court to accept those free speech claims, was that in both of those situations the Court concluded that the complaining party was clearly and unequivocally involved in expressive activity, the compelled action would directly contradict a central message of the complaining party, and the compelled message would likely be attributed to the complaining party by others.
The problem for Jack Phillips in the Masterpiece Bakeshop case is that his situation is not even close to those two cases. He simply refused to make a wedding cake for a same-sex couple. Although baking a cake may involve some element of artistry, requiring him to sell wedding cakes to gay couples does not in any meaningful way interfere with any clear message he himself is conveying and does not in any meaningful compel him to endorse a specific message that he rejects.
Indeed, if Phillips has a First Amendment right to discriminate against same-sex couples in this manner, then so would a house painter or a funeral director or hotel owner have a right to discriminate against Hispanics, Muslims, women, Evangelicals, and persons of Japanese descent because they don’t want to convey the implicit message that such individuals are worthy of their respect and service.
In truth, Phillips’ case would be more interesting and more difficult if he had been willing to provide a wedding cake for Craig and Mullins but had refused to write a message on cake expressly saying “God Bless this Same-Sex Wedding.” In that situation, at least, he would be objecting to conveying a specific and explicit message with which he disagrees. But Phillips never got that far in his conversation with the couple. He just refused to make a wedding cake for them because they were gay, period. Under those facts, the Supreme Court, following the lead of the Colorado Supreme Court, should reject the free speech argument.
In my next piece, I will address the religion issue.