David Cole
This Takes the Cake
“It is a general rule that [religious and philosophical] objections do not allow business owners . . . to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” So wrote Justice Anthony Kennedy for the majority in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which was decided by the Supreme Court on June 4. The case, which I argued in the Court on behalf of Charlie Craig and David Mullins, a gay couple denied a wedding cake by a Denverarea bakery, posed the question of whether the bakery owner had a First Amendment right to refuse to sell the couple a wedding cake because he objected on religious grounds to same-sex marriage.
The answer, at least according to Justice Kennedy’s “general rule,” would seem to be no. Colorado’s public accommodations law, like those of forty-four other states and the federal government, is a “neutral and generally applicable public accommodations law” that forbids discrimination against customers based on race, sex, sexual orientation, and the like. Accordingly the baker’s religious objections do not permit him to deny “equal access to goods and services.”
And yet the Court ruled, by a vote of 7–2, in favor of Masterpiece Cakeshop and its owner/baker, Jack Phillips, with Justices Elena Kagan and Stephen Breyer joining their five conservative colleagues. It did so on the case-specific ground that, regardless of the legality of the baker’s refusal to serve the gay couple, the Colorado Civil Rights Commission that considered their claim of discrimination was infected by antireligious bias, which independently violated the baker’s constitutional right to the free exercise of religion. Because it decided the case on this narrow ground, the Court did not formally rule on the question of whether businesses open to the public could ever rely on the First Amendment to justify discrimination.
The decision has caused confusion among advocates and commentators on all sides. Rachel Tiven, the CEO of the LGBT civil rights organization Lambda Legal, said, “The Court today has offered dangerous encouragement to those who would deny civil rights to LGBT people.” The lawyer for the baker, Kristen Waggoner of Alliance Defending Freedom, an anti-gay advocacy organization, proclaimed that “the court’s decision announced that the government was wrong to punish Phillips for living according to his beliefs about marriage.” And the constitutional law professors Larry Sager and Nelson Tebbe wrote that “in Masterpiece, the Court released a baker from the requirement that he serve all customers, including same sex wedding celebrants.”
All of these pronouncements are wrong. The decision does not encourage discrimination against LGBT people; on the contrary, it strongly reaffirmed the importance of antidiscrimination laws and declined to adopt claims of a First Amendment right to discriminate. Nor did the Court say it was “wrong to punish Phillips for living according to his beliefs.” It simply found that the particular process used to determine whether he had violated the law was biased against religion. And the Court did not release a baker “from the requirement that he serve all customers.” Masterpiece Cakeshop remains just as subject to Colorado’s public accommodations laws after the decision as it was before. If Charlie Craig and David Mullins walked into the shop today and asked for a cake to celebrate their anniversary, the baker would have no right to turn them away. Waggoner and the Trump administration had argued for just such a sweeping First Amendment exemption. They contended that because the baker’s wedding cakes were “expressive,” requiring him to make one for a gay couple would impermissibly compel him to express views with which he disagreed. Such an exemption would have had radical consequences, because a wide range of services and products can be viewed as “expressive.” Architects, lawyers, chefs, bookstores, hairdressers, tailors, nail salons, and interior decorators all offer “expressive” goods and services. If the Court had endorsed this exemption, a baker could refuse to sell a birthday cake to a black family if he objected to celebrating black lives, or an architect could refuse to provide plans for a Muslim couple’s home if he objected to Islam.*
Because such results would be so plainly unacceptable, the justices pressed the lawyers for the baker and the Trump administration during oral arguments on whether the First Amendment exemption they were seeking could be limited in any principled way. The lawyers had no good answers. Solicitor General Noel Francisco argued that Phillips’s cakes should be protected, unlike, say, grocery store cakes, because “people pay very high prices for these highly sculpted cakes.” But he never explained why the First Amendment should protect only “highly sculpted” and expensive cakes. Waggoner, also seeking ways to limit the unappealing consequences of her argument, insisted that architects, chefs, and makeup artists were not expressive, and therefore would not be protected under the First Amendment exemption she claimed for her client—prompting Justice Breyer to ask whether Michelangelo’s Laurentian Steps were not expressive. Waggoner had no response.
In his decision for the Court, Justice Kennedy made clear that the arguments advanced by the Trump administration and the baker raised serious concerns. He acknowledged that a minister could not be compelled to perform a wedding that violated his religious tenets, but warned that
if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.
(Ministers are not businesses open to the public, so they are not obligated by public accommodations laws.) And he noted that the baker’s sweeping argument could lead to unacceptable results, in which
all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect [would] be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons.
The Court thus plainly refused to accept the baker’s and the Trump administration’s invitation to create a First Amendment right to discriminate. Nonetheless, Attorney General Jeff Sessions appears not to have gotten the message. In remarks to a group of religious leaders in Washington on June 13, he said, “There is no need for the power of the government—no need for the state’s power—to be arrayed against an individual who is honestly attempting to live out—to freely exercise—his sincere religious beliefs.” But of course, as the Supreme Court recognized, there is a need for antidiscrimination laws, many of which the Justice Department itself is responsible for enforcing. And exempting those who object on religious grounds to providing equal treatment would open a gaping loophole in our nation’s commitment to equality.
The Court’s finding that the commission’s antireligious bias had nonetheless violated the baker’s free exercise rights was strained, to put it mildly. It cited one commissioner who said that “it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others,” and another who said that Phillips can believe “what he wants to believe,” but cannot act on that belief “if he decides to do business in the state.” “Despicable” was an unfortunate choice of words, but the statement that one cannot invoke religion to harm others is actually straightforward constitutional law, as is the principle that one cannot invoke religion to avoid complying with a generally applicable business regulation.
The Court also saw bias in the fact that while the commission ruled that Masterpiece Cakeshop had impermissibly discriminated by refusing to sell a wedding cake to a gay couple, the commission found no discrimination when three other bakers refused to bake cakes bearing homophobic messages for William Jack, a Christian activist. But the cases are easily distinguished, and the commission rightly treated them differently. Masterpiece Cakeshop refused to sell to a gay couple a product it would happily sell to a straight couple; it therefore discriminated on the basis of sexual orientation. The three other bakers refused to sell to Jack cakes they would not make for anyone. As there was no evidence that they treated Jack differently from any other customer because he was Christian, they did not violate Colorado’s law. In fact, each of the bakers had regularly made Christian-themed cakes, and agreed to Jack’s request to make cakes in the shape of a Bible and declined only to write messages on them that they deemed offensive. Public accommodations law does not require businesses to make any particular products, and allows them to refuse to make products they deem offensive. It only bars them from refusing, on the ground of a customer’s identity, to sell a product they would sell to others. As Justice Ruth Bader Ginsburg explained in her dissent, “Change Craig and Mullins’ sexual orientation (or sex), and Phillips would have provided the cake. Change Jack’s religion, and the bakers would have been no more willing to comply with his request.”
The Court’s labored finding of “bias” looks like an attempt to avoid squarely confronting the issue it originally intended to resolve when it took the case.
Certainly the Court did not grant review merely to scold a low-level state civil rights commissioner for an infelicitous remark. And the difference between the Masterpiece Cakeshop case and those involving the other bakers is too easily stated to have been a genuine basis for concern about bias.
Why, then, did the Court reach this result? The justices may well have considered this a “statesmanlike” resolution. Rather than rule definitively on perhaps the most controversial case of the year, the Court gave something to both sides, and by doing so managed to cobble together a seven-justice majority. In a starkly divided nation, it avoided a sharply divided result. The Court handed a nominal victory to the baker, but it was a one-time-only decision that signaled no enthusiasm for the sweeping First Amendment right to discriminate that the baker and the Trump administration had sought. Future disputes of this sort will almost certainly be guided by the Court’s “general rule,” as expressed by Justice Kennedy, that there is no First Amendment right to deny “equal access to goods and services” under public accommodations law. That is, unless changes in the Court’s personnel cause it to veer sharply to the right. For now, however, the “general rule” applies. Indeed, just three days after the Masterpiece Cakeshop decision, an Arizona appellate court cited that very language in rejecting a Phoenix-based business’s claim that it had a First Amendment right not to provide artwork to samesex weddings on the same terms as it serves opposite-sex weddings. Masterpiece Cakeshop is reportedly considering getting back into the business of making wedding cakes, which it halted rather than have to serve gays and lesbians. But if it does so, it will have to sell them to everyone.