This is Part 2 of a some stuff I wrote about the Masterpiece Cakeshop “gay wedding cake” case. See here for Part 1.
“Should a religious baker have to create a cake for a same-sex wedding? Imagine a Jewish baker having to put a swastika on a cake.”
So reads a recent tweet from the Chicago Tribune, with a link to their editorial on the Masterpiece Cakeshop case (as you might guess, supporting the cake shop, not the gay couple). I’ve seen this slippery slope type of argument come up a lot in discussions (or rather shouting matches) about this issue. Setting aside the fact that Nazis aren’t really in a class protected by nondiscrimination laws, this gotcha! retort demonstrates a fundamental misunderstanding of what nondiscrimination laws prohibit. It’s not that the baker can’t refuse to include an offensive message on a cake; rather it’s that he can’t refuse services he would normally provide to everyone else (whether it’s all services, or even just certain services) to someone based on their being a member of a protected group. For instance, if the baker is willing to provide a wedding cake to a gay couple, but refuses to include the message, “Suck it, Christians! We’re getting gay married!” he’s not discriminating against them for being LGBTQ+. He’s willing to provide the wedding cake, he’s just not willing to create a message he finds offensive. He wouldn’t create that message for anyone, so there’s no disparity of treatment based on the clients’ sexuality. The clients can have a wedding cake, just like everyone else, but they can’t have the offensive message, just like everyone else.
And this brings us to the heart of the matter in the Masterpiece Cakeshop case. While the gay couple maintain that the baker refused a particular service to them because they’re gay, the baker is claiming that he was really just refusing to provide a message he finds offensive. Here’s how each side is framing the issue:
Gay couple – The baker provides wedding cakes (among other baked goods) to the public. But the baker refuses to provide a wedding cake to this particular couple because the couple is gay. This is unlawful discrimination. If there’s any sort of limiting of personal expression (and if there is, it’s quite minor, since a cake is not a message in any real sense), this is merely incidental to a law that is focused on eliminating discrimination, not on limiting speech, and is therefore not a violation of the First Amendment right to free speech.
Baker – The baker provides baked goods to the public, including the gay couple. However, messages in support of same-sex marriage violate the baker’s beliefs and he finds them offensive, so he won’t create such messages for any client, including the gay couple. Providing a cake for the gay couple’s wedding, in and of itself, is creating a message in support of same-sex marriage, and refusing to provide such a cake is merely refusing to create a message he finds offensive. It’s not discrimination since the gay couple is being treated the same as all other clients – they can have any pastry, he just won’t create a message for them in support of same-sex marriage. And being forced to make the cake is not just “an incidental limitation on personal expression,” but rather the government forcing him to create a specific message, which violates his First Amendment right to freedom of speech.
The gay couple provides support for their argument from past Supreme Court cases that have found that nondiscrimination laws do not violate a person’s right to free speech or free exercise of religion (i.e. there’s no Constitutional right to discriminate), as well as cases that have found that laws that only incidentally restrict speech as a result of regulating other types of conduct do not violate First Amendment free speech principles. For instance, in the case Rumsfeld v. Forum for Academic & Institutional Rights, Inc., the Supreme Court noted:
It has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading “White Applicants Only” hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.
(citations omitted). And, of course, what argument would be complete without the ever present slippery slope (in lawyer lingo we also call this the “parade of horribles” – as in the all the horrible things that could happen if the other side wins). In this case, those who support the Colorado nondiscrimination law as it was applied in this case argue that if making a cake is protected speech that trumps nondiscrimination laws, then any number of other made-to-order items and other services would also qualify as speech – a carpenter making a chair, a dressmaker making a dress, that snooty bartender and his “personally crafted cocktails,” a sandwich made by a Subway sandwich artist, etc (not necessarily the examples used in their arguments). And if any of these people can use free speech claims to avoid complying with nondiscrimination laws, then the effectiveness of these laws is severely compromised. It would be a giant step backward for civil rights.
For his part, the baker provides support for his argument from past Supreme Court cases that have found government-compelled speech to be a violation of the First Amendment right to free speech and therefore can only be justified if the law is narrowly tailored to serve a compelling government interest (there’s that strict scrutiny again, which, as a reminder, means that law has to be really, really important or the government who passed the law loses). One of the more famous of these cases is Wooley v. Maynard, where a New Hampshire couple decided they didn’t actually want to “Live Free or Die,” thank you very much, or rather they didn’t want to display this state slogan on their government-issued license plate. The court in this case found that:
[W]e are faced with a state measure which forces an individual, as part of his daily life — indeed, constantly while his automobile is in public view — to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable. In doing so, the State invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control. … The First Amendment protects the right of individuals to hold a point of view different from the majority, and to refuse to foster, in the way New Hampshire commands, an idea they find morally objectionable.
For his “parade of horribles,” the baker contemplates that if nondiscrimination and other laws trump free speech, then artists of all types could be forced to produce works that convey messages they find repugnant: a Jewish painter forced to create a mural of Christ’s resurrection for a Christian church, an atheist poet forced to write a poem extolling the virtues of God for display in a Jewish synagogue, a Democratic sculptor forced to sculpt a statue of Ronald Reagan, etc. (also not necessarily the examples used in their arguments).
In response to these “forced speech” concerns, those on the side of the gay couple make a distinction between artists who create their own works and then sell these works in the public marketplace (nondiscrimination laws don’t apply to the subjects and themes in these artists’ works, they are free to choose to write/paint/sculpt about whatever they want) and artists who offer their artistic services in the public marketplace (painter-for-hire, poet-for-hire, sculptor-for-hire, etc. who are all subject to nondiscrimination laws and therefore cannot turn down a client in a protected group just because they believe creating art for this client forces them to convey an undesirable message related to the client’s protected group).
One last issue to consider in this case is that of “strict scrutiny.” The gay couple and their supporters argue that, even if the court were to find that requiring the baker to make the cake for the same-sex wedding is forced speech and covered by the First Amendment, the state of Colorado has a compelling interest to protect the LGBTQ+ community from discrimination and the state’s ruling should still stand. In other words, the couple argues that the nondiscrimination law survives strict scrutiny because it’s really, really important. The baker’s (and all those supporting him) response is basically, “Nah.” He argues that the LGBTQ+ community isn’t as marginalized as other groups and in doing so distinguishes nondiscrimination laws for LGBTQ+ from racial nondiscrimination laws, which he says would likely survive strict scrutiny. In this way, he addresses the slippery slope concern; free speech doesn’t give people a pass on racial nondiscrimination laws because those laws are really important (i.e. survive strict scrutiny) while LGBTQ+ laws… not so important.
We’ll find out in June whether the Supreme Court considers a cake to be protected speech and, if so, whether the baker’s right to that protected speech trumps Colorado’s LGBTQ+ nondiscrimination law. From my perspective, I think the “cake as speech” angle is a stretch, I think there’s validity to the gay couple’s parade of horribles (if cake is speech, then I think a lot of people will start claiming all sorts of things as “speech”), and I’m very much bothered by the claim that nondiscrimination laws protecting the LGBTQ+ community really aren’t all that important. On the other hand, I do think that when it comes to artists who create expressive works of art (paintings, photos, writing, sculptures), there is a free speech aspect to consider, even when these artists offer their services in marketplace (more on that in the third and final – I promise – post). Unfortunately, it seems this issue defies easy answers and tweetable slogans (“Why do you want to force Jewish bakers to make Swastika cakes??!?!!”). The lesson here is to avoid looking closely into issues as a general matter, and stick to “Like”-ing and Retweeting – it makes life much simpler.