Let Them Buy Cake

When David Mullins and Charlie Craig walked into Masterpiece Cakeshop, a bakery in Denver, Colorado, five years ago, they had no inkling that the encounter would take them to the United States Supreme Court. All they wanted was a wedding cake. But as soon as Jack Phillips, the bakery’s owner, realized that the marriage they were celebrating was their own, he cut off the conversation, explaining that he would not make any cake for a same-sex wedding. They never even discussed what the cake would look like or say, because Phillips made it clear that his policy was absolute. The bakery has turned away several other same-sex couples on the same grounds, including a lesbian couple who wanted to buy cupcakes for a commitment ceremony. Phillips claims that because he objects to same-sex unions on religious grounds, and because his cakes are a form of expression, he has a First Amendment right to refuse to sell them to gay couples for their wedding receptions.

When they were turned away, Mullins and Craig brought a complaint before the Colorado Civil Rights Commission, which enforces the state’s public accommodations law. That law, which dates back to 1885, requires businesses open to the public to treat their customers equally. (Forty-five states have a similar law, as does the federal government.) Since 2008, Colorado has specifically prohibited businesses from discriminating against customers on the basis of sexual orientation, in addition to disability, race, creed, color, sex, marital status, national origin, and ancestry. The commission found that by selling wedding cakes to straight couples but refusing to sell them to gay couples, the bakery had violated the public accommodations law. The Colorado courts upheld that decision, rejecting the bakery’s First Amendment objections—as have courts hearing similar cases involving florists, banquet halls, photographers, and videographers. In June, however, despite the unanimity among the lower courts, the Supreme Court agreed to hear the bakery’s appeal.

The case will be argued on December 5. (The ACLU represents Craig and Mullins, and I am co-counsel in the case.) It asks whose rights should prevail when the First Amendment’s guarantees of freedom of religion, speech, and association come into conflict with equality—over a cake, no less. It is one of the most talked-about cases of the term, in part because it’s so easy to conjure hypothetical variations: What if the cake includes the message “God bless this union”? What if a wedding photographer, who has to be present at the ceremony in order to provide her services, objects to same-sex marriage? Should bakeries or photographers be permitted to refuse their services to an interracial or interfaith couple? Could a bakery refuse to make a birthday cake for a black family because its owner objects to celebrating black lives?

The Masterpiece Cakeshop dispute is at the center of a new front in the clash between opponents and proponents of marriage equality. Even before the Supreme Court declared in 2015 that same-sex couples have a constitutional right to be married on the same terms as different-sex couples, opponents of marriage equality had begun invoking their own First Amendment rights, claiming that they should not have to do anything to support unions that are contrary to their sincere beliefs. This controversy is not limited to same-sex weddings. If the Court accepts the bakery’s arguments, it will open a potentially gaping loophole in all laws governing businesses that provide “expressive” products or services.

The Trump administration has filed a friend-of-the-court brief supporting the bakery, the first time in history that the solicitor general has supported a constitutional exemption from an antidiscrimination law. One of the Justice Department’s principal responsibilities is to enforce public accommodations and antidiscrimination laws, so it is generally skeptical of arguments for allowing citizens to evade their strictures. But not this administration, at least not when what’s at issue is a religious objection to selling a cake to a same-sex couple.

Businesses have raised First Amendment objections to antidiscrimination laws in the past, but the Supreme Court has always rejected them. In 1968, the Court dismissed as “patently frivolous” a South Carolina restaurant chain’s argument that serving black customers “interfere[d] with the ‘free exercise of [its] religion.’”¹ Five years later, when private racially segregated schools opposed a prohibition on racial discrimination in admissions, asserting that it violated their freedom of association, the Court acknowledged that “private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment,” but ruled that such discrimination “has never been accorded affirmative constitutional protections.”² And in 1984, when a corporate law firm objected that a requirement to consider a woman for partner would interfere with its First Amendment rights to speak and associate, the Court once again rejected the contention, stating that there is “no constitutional right to discriminate.”³ As Justice Sandra Day O’Connor explained in yet another case rejecting a First Amendment exemption from an antidiscrimination law:

The Constitution does not guarantee a right to choose employees, customers, suppliers, or those with whom one engages in simple commercial transactions, without restraint from the State…. A shopkeeper has no constitutional right to deal only with persons of one sex.⁴

If the courts were to recognize a First Amendment exemption to such general regulations of commercial conduct, it would render antidiscrimination laws, and many other business regulations, unenforceable in many settings. Consider the First Amendment right of association. Any prohibition on discrimination can be characterized as a requirement to associate with those with whom one would rather not associate. The Court must choose between the two, and its choice has been clear since Brown v. Board of Education declared segregation unconstitutional.

Religious exemptions are also generally incompatible with antidiscrimination laws. Beyond asking whether a religious belief is sincere, the courts have no way to measure whether religious beliefs are “legitimate.” As a result, a constitutional religious exemption would free any business owner who framed his objection in religious terms from an obligation to treat his customers equally. As Justice Antonin Scalia wrote for the Court in rejecting a free exercise claim in 1990, laws of general applicability “could not function” if they were subject to such religious challenges. Quoting an 1878 decision, Scalia warned that such an exemption would “permit every citizen to become a law unto himself.”⁵

Masterpiece Cakeshop’s objection rests on its owner’s Christian beliefs. And its complaint is ultimately a desire not to be associated with a same-sex couple’s wedding celebration; it objected to selling Craig and Mullins even a nondescript cake. But because the Supreme Court has flatly rejected both association- and religion-based claims in such cases already, the bakery stresses that it is making a free speech claim. It maintains that it speaks through its cakes, which should make this case different.

The reasons for rejecting exemptions based on religion and association, however, are equally applicable to free speech claims. Because almost any conduct can be engaged in for “expressive” purposes, the exceptions would very quickly swallow the rule. As the Supreme Court has recognized, “it is possible to find some kernel of expression in almost every activity a person undertakes.”⁶ Any business that uses creative or artisanal skills to produce something that communicates in some way could claim an exemption. A law firm, which provides its services entirely through words, could refuse to serve black clients. Photographs are undeniably expressive, so a commercial photography studio could post a sign saying it takes pictures only of men if it objected to depicting women. A sign-painting business whose owner objects to immigration could refuse to provide signs to Latino-owned businesses.

Likening its cakes to the art of Jackson Pollock and Piet Mondrian, Masterpiece Cakeshop claims that they deserve protection as free speech no less than Pollock’s canvases. But whether the cakes are artistic is beside the point. As an individual artist, Pollock would not have been subject to a public accommodations law and could have chosen his customers. But if he had opened a commercial art studio to the public, he, too, would have been barred from refusing to sell a painting because a customer was black, female, disabled, or gay.

The fact that a business’s products may be expressive does not give it the right to discriminate. Newspapers and book publishers, for example, are indisputably engaged in core First Amendment activity, but that does not mean that they can refuse to sell to (or hire) Mormons or women. As the Supreme Court stated in 1945, “The fact that the publisher handles news while others handle food does not…afford the publisher a peculiar constitutional sanctuary in which he can with impunity violate laws regulating his business practices.”⁷ If newspapers can be required not to discriminate, then surely bakeries can as well—no matter how artistic their confections may be.

The reason First Amendment objections have failed in these cases is that the laws in question are not in any way targeted at expression. A law forbidding employment discrimination, for example, applies regardless of whether a business is expressive, like a newspaper, or not, like a hardware store. The same is true for public accommodations laws. By contrast, a law requiring newspapers to print replies to editorials would be directed at the content of the newspaper’s speech and would violate the First Amendment. Because public accommodations laws do not target speech or its content, they should survive First Amendment challenges.

The Supreme Court has recognized a First Amendment objection to public accommodations laws on only two occasions, but both cases involved efforts by states to regulate the speech of private ideological associations, not the conduct of businesses open to the public. In 1995, the Court ruled that Massachusetts could not use its public accommodations law to require the private organizers of Boston’s annual St. Patrick’s Day parade to allow a gay pride contingent to march under its own banner.⁸ The parade organizers were open to gay marchers, but objected to an openly gay contingent carrying its own banner. The Court reasoned that a parade is an inherently expressive activity, and that by requiring the organizers to include a gay pride banner, the state was “alter[ing] the content” of the parade’s message. Similarly, in 2000, the Court ruled that New Jersey could not require the Boy Scouts to accept an openly gay Scout leader, because doing so directly interfered with the Boy Scouts’ First Amendment right to choose leaders who did not undermine the group’s mission.⁹

Masterpiece Cakeshop invokes these cases, but they are plainly different. The St. Patrick’s Day parade organizers and the Boy Scouts are private groups that exist for the purpose of communicating ideas, not businesses serving the public in the commercial marketplace. Private organizations engaged in speech have a First Amendment right to choose their messages and their leaders. Businesses open to the public, by contrast, have no right to choose their customers.

But, some ask, what if a couple requested a cake bearing a written message? Surely the law should not require the bakery to write “Congratulations on your wedding” if the baker does not in fact feel congratulatory. And doesn’t every wedding cake implicitly say just that? The problem with this question is its premise—namely, that if a business’s conduct is sufficiently expressive, it earns the right to discriminate against its customers based on race, sex, sexual orientation, or other grounds.

Under Colorado law, as under most public accommodations laws, a bakery can decline to place any messages on a cake that it finds offensive, as long as that policy applies to all customers and is not a pretext for discrimination on the basis of identity. What it cannot do is refuse to provide to a gay couple the very same product that it will sell to a straight couple. In this case, moreover, Masterpiece Cakeshop refused to provide even a nondescript cake if it was to be used for a reception celebrating a same-sex couple’s wedding. What triggered the objection was the identity of the customers, not any requested message. In fact, Craig and Mullins did not request a message at all.

Masterpiece Cakeshop’s effort to carve out a First Amendment exemption to an antidiscrimination law that on its face does not target speech would require the Court to depart from its general approach to similar claims. The Court has consistently ruled that when a generally applicable law is not targeted at a constitutional right, the fact that it incidentally affects the right does not invalidate the law. A law prohibiting the use of peyote by all citizens is not invalid because it impedes the ability of certain Native Americans to use peyote in their religious rituals. Similarly, the fact that a preference granted to veterans who apply for civil service jobs has the incidental effect of disadvantaging female applicants is not a denial of equal protection.

Only laws that target religion, or that are intended to deny equal treatment to a protected class, trigger heightened scrutiny under the First Amendment’s religion clause and the Equal Protection clause. In a pluralist society, it is inevitable that many generally applicable laws will have incidental effects on different community members. But unless every man is to be a “law unto himself,” there cannot be an exemption for everyone who complains about a law’s indirect effect on his constitutional rights.

That principle is especially appropriate for antidiscrimination laws, like the Colorado law that Masterpiece Cakeshop seeks to evade. Such laws are by their very nature designed to ensure equal treatment for all, so that no one has to endure the stigma and shame of being turned away by a business that disapproves of who they are. If those laws were subject to exemptions for anyone who could claim his product or service was expressive, they would become not a safeguard against discrimination, but a license to discriminate.