Does refusing to bake a wedding cake count as speech?

ON DECEMBER 5th the Supreme Court takes up its first major gay-rights battle since the landmark 2015 decision opening marriage laws nationwide to gay and lesbian couples. The case, Masterpiece Cakeshop v Colorado Civil Rights Commission, has spurred ample media coverage, more than 90 amicus or “friend of-the-court” briefs (evenly split between the two sides) and a queue snaking around 1 First Street, NE of people hoping to claim one of the few dozen public seats in the courtroom. 

This attention is not surprising. As your blogger’s first preview of the oral argument explained, two sides of a cultural battle are colliding before a court that is fractured along ideological lines. Four conservative justices are expected to incline toward Jack Phillips, a Christian baker who declines to create cakes for wedding ceremonies he considers sacrilegious; four liberal justices will probably favour the right of Charlie Craig and David Mullins, under Colorado’s public-accommodations law, to be treated equally in the marketplace. The looming question mark is Justice Anthony Kennedy, 81, author of Obergefell v Hodges from 2015 and three other major gay-rights cases, whose support for LGBT Americans may be tempered by his tendency to vindicate plaintiffs’ First Amendment claims and take an expansive view of both freedom of speech and religious liberty. 

The post last week observed that Mr Phillips’s religious-liberty claim flies in the face of both reason and the Supreme Court’s long-standing position that neutral laws of general applicability do not violate the constitution when they only indirectly impinge on an individual’s religious practice. The baker’s complaint with regard to freedom of speech, however, has a bit more to recommend it. As Mr Phillips’s lawyers at the Alliance Defending Freedom (ADF) observe, Mr Phillips is no ordinary baker. He is, instead, “an artist using cake as his canvas”, with creations that go well beyond crumby, frosted confections. The Supreme Court sees “protected artistic expression [as] a broad category”, the brief says. The term embraces “unintelligible ‘paintings of Jackson Pollock’” as well as “atonal instrumentals,…sexually explicit materials,….tattooing….[and] custom-painted clothing”. 

In light of the wide berth the First Amendment affords artistic speech, the ADF lawyers claim, “Phillips is as shielded by the Free Speech Clause as a modern painter or sculptor, and his greatest masterpieces—his custom wedding cakes—are just as worthy of constitutional protection as an abstract painting like Piet Mondrian’s Broadway Boogie Woogie, a modern sculpture like Alexander Calder’s Flamingo, or a temporary artistic structure like Christo and Jeanne-Claude’s Running Fence”.

One can forgive Mr Phillips’s lawyers for perhaps overstating the artistic company with which their client’s fondant-and-flour creations belong. But it is less forgivable to elide an obvious distinction: Mondrian and Calder were not operating shops open to the public and refusing to sell certain pieces of art to a class of people whose life rituals they deemed sinful. Christo and Jeanne-Claude did not erect their monumental 25-mile art installation on the condition that gay couples would be banned from coming near it. Both Mr Phillips and his fellow artists have a right to artistic freedom, but where a law prohibits turning people away on the basis of their sexual orientation (among other identity markers), that freedom does not trump a requirement to afford gays and straights alike the “full and equal enjoyment” of the all their goods and services up for sale.

This reasoning forms the heart of a short, powerful brief signed by Floyd Abrams, America’s foremost First Amendment lawyer who nearly always stands on the side of the party clamouring for free speech. (He argued, successfully, on behalf corporations challenging campaign-finance rules in the controversial Citizens United decision of 2010.) Masterpiece Cakeshop is a different story for Mr Abrams, because Colorado’s public accommodations law “regulates conduct, not speech”. Wedding cakes carry some general message of celebration, but the law does not require Mr Phillips to sell them. It only asks that he “sell[s] customers whatever expression may be inherent in a wedding cake” in an evenhanded way, without turning away “African Americans, women, gays, interracial couples, persons of Irish descent, and so on”.

Mr Phillips’s free-speech claim falters whether one considers the cake’s message to lie in the creator’s intent or in the view of the average wedding party attendee. The logic of the former is axiomatic: if Mr Phillips does not approve of gay marriage, then he does not communicate a message of approval by agreeing to bake a wedding cake. And as Mr Abrams’s brief notes, “[a] churchgoer does not understand the printer of her church bulletin to be welcoming her to the 10:00 Mass”; a youngster celebrating a birthday “does not believe that Carvel wishes him a happy birthday” when he dives into an ice-cream cake. Whatever message a cake may transmit is likely received by the party-goer as coming from the customer who ordered it, not from the baker who was paid to supply it. But as the court below and Mr Abrams noted, a baker who is particularly worried about being misinterpreted could include a disclaimer near the cake laying out his true belief, or stating that he made the cake in deference to Colorado’s civil-rights protections.

For all the swirling controversy, Masterpiece Cakeshop could be a relatively easy case for the justices to decide. Given the rather damning set of facts—Mr Phillips categorically refused to bake a wedding cake for the gay couple, before any discussion of adorning words or symbols arose—it’s possible a comfortable majority of the court could rule against the baker. 

But such a win for LGBT equality could prove to be skimpier than it sounds when the next legal question inevitably arises: must a baker decorate a cake with whatever message a protected class of individuals instructs him to? Mr Abrams demurs here, as he should: the Colorado law “does not compel a baker to inscribe a cake with a unique message he has not produced and would not produce for any other customer—say, ‘God Bless This Gay Wedding’“. Such a requirement would probably not survive constitutional scrutiny. A narrow win for the gay couple, then, may not amount to much. It would prohibit a wedding cake proprietor from shutting down a discussion the minute a gay couple enters his store, but allow the baker to balk as soon as the prospective customer requests specific messages—or even just rainbow colours.

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