David Cole
replies:
Michael Washburn accuses me of ignoring the First Amendment claim of the baker in
my account of the Masterpiece Cakeshop decision. In his view, once one understands the baking of a “custom” wedding cake as expressive, it follows that the baker has a First Amendment right to refuse service to a gay couple, because baking a wedding cake for them, even if it looks exactly like a wedding cake he would make for a straight couple, will compel him to “express” support for same-sex marriage. In fact, I addressed that argument in full in my pre-decision piece [“Let Them Buy Cake, NYR, December 7, 2017]. And while Mr. Washburn apparently missed it, I also addressed that argument in my post-decision piece, “This Takes the Cake.”
The Supreme Court declined to recognize a First Amendment right on the part of businesses open to the public to discriminate on the basis of sexual orientation (or race or sex or religion), even if the business’s products or services are “expensive.” That’s what the baker sought, but the Court declined to accept that contention, and instead ruled for the baker only on the ground that the Colorado process that adjudicated his case was infected by religious bias. Justice Anthony Kennedy went out of his way to include in his decision strong language refuting any such right to discriminate founded in the First Amendment.
Mr. Washburn claims that the “expressive” character of a custom cake is what makes the baker’s claim different. As a factual matter, the couple did not, as Mr. Washburn suggests, request a specific design or message; indeed, as soon as the baker learned they sought a cake for a same-sex wedding celebration, he turned them away, refusing regardless of its design. But more importantly, as I noted in “This Takes the Cake,” neither the baker’s lawyer nor the solicitor general, representing the Trump administration, could offer a coherent way to distinguish “expressive” businesses that have a right to discriminate from those that do not. If bakers are “expressive,” so, too, are chefs, hair stylists, architects, schools and colleges, nail salons, and corporate photography studios. Should they all have the right to turn away AfricanAmericans, or women, or Muslims, or gay people if they object to being compelled to express support for them by providing an expressive service? As the oral argument revealed, there is no stopping point to this theory—which is why the Court has rejected it when it has been asserted to justify race and sex discrimination by restaurants and law firms in the past.
Mr. Washburn’s analogy to a novelist is misguided. Writers, painters, and sculptors are generally not businesses open to the public but freelancers who enter into oneon-one contracts. Public accommodations laws do not apply to them. But once a business chooses to open its doors to the public, it is obligated to serve the public without discrimination. A painter does not have to paint for anyone in particular. But if he chooses to open a sign-painting business to the public, he can’t turn away customers because they are gay, black, or Christian.
Mr. Washburn’s error is the same one the baker’s lawyers made. The First Amendment inquiry focuses not on whether a given course of conduct is expressive or not—because virtually all conduct is expressive in some sense—but instead on whether the government is regulating the conduct because of what it expresses or regardless of what it expresses. Thus, if the government were to pass a law expressly requiring bakers to bake cakes for same-sex weddings (or indeed for opposite-sex weddings), a baker could object that the law was passed specifically to compel expression of a particular viewpoint. Such a law would be treated as a regulation of speech, and would have to satisfy stringent First Amendment scrutiny. But public accommodations laws regulate discriminatory conduct regardless of whether it is “expressive” or not. They apply equally to hardware stores and bookstores, to bakeries and hotels. They do not single out “expression” of any kind, but regulate conduct. Such laws have long been upheld against First Amendment challenges, because there is no First Amendment right to discriminate.