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Earlier this month, the Supreme Court heard oral arguments in a case revolving around the right of a cake-maker to refuse to make and sell a cake celebrating a couple’s same-sex marriage. Chris Barker looks at the precedents and judicial opinions which feed into this case, and comments that its important questions cover the free exercise of religion, compelled speech, and discrimination based on sexual orientation.

The case of Masterpiece Cakeshop is one about dueling dignities. The owner of Masterpiece Cakeshop in Lakewood, Colorado, Jack Phillips, is a “cake artist” who is willing to serve same-sex customers; to sell them baked goods; but not to design and bake them a custom-made wedding cake. Charlie Craig and David Mullins sought to celebrate their same-sex relationship by buying a custom cake from Phillips in July, 2012. When Phillips refused to custom-make a wedding cake for them, they sued him. Phillips lost in Colorado’s courts and the case is now before the Supreme Court.

How the Court rules will be in part determined by its use of precedents—decisions of lower courts and its own prior decisions. The most important earlier Supreme Court cases (from most- to least-cited, as compiled by Empirical Scotus from the briefs arguing for and against Phillips) are: Obergefell v. Hodges; Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston; Burwell v. Hobby Lobby Stores; Employment Division v. Smith; Rumsfeld v. FAIR; Boy Scouts of America v. Dale; Romer v. Evans; Church of the Lukumi Babalu Aye; Lawrence v. Texas; and US v. Windsor.

Some of these opinions are important because of who wrote them. Potential swing vote Justice Anthony Kennedy wrote the important quartet of sexual intimacy cases (Obergefell, Windsor, Romer, and Lawrence) protecting the rights of same-sex persons; the question now concerns the reach of those equality-preserving opinions. Other cases mentioned in the briefs and in the oral arguments are important because they help to address three thorny questions about a) free exercise of religion, which is protected by the First Amendment, b) compelled speech, which is prohibited by the First Amendment, and c) discrimination based on sexual orientation, which is prohibited by a Colorado anti-discrimination law.

Is religious expression protected in commercial transactions?

In Employment Division v. Smith (1990), Justice Scalia denied religious free exercise exemptions to neutral, generally-applicable laws. The conduct for which an exemption was sought was the use of peyote in religious rituals of the Native American Church. If the Court was to rely on Smith, Phillips should lose his case.

Complicating matters, Phillips is not actually being forced to participate in a same-sex marriage ceremony. By analogy, in Rumsfeld v. FAIR, the Court found a difference between the speech of military recruiters and the universities where they were recruiting. As Mary Bonauto explains, a message on a cake is the celebrants’ message, not the message of the baker.

Also, Phillips is engaged in a commercial transaction, and religious exercise in commercial transactions is less protected than in other contexts. For example, in Newman v. Piggie Park Enterprises, Inc. (1966), the owner of a restaurant was unsuccessful in arguing that the 1964 Civil Rights Act was “against the will of God.” More recently, in US v. Lee (1982), the Court affirmed restrictions on the speech of commercial enterprises. In Burwell v. Hobby Lobby Stores (2014), which is complicated by the federal Religious Freedom Restoration Act passed in response to the unpopular Smith decision—Colorado lacks a state equivalent―family-owned businesses were protected from an otherwise general requirement that businesses provide no-cost access to contraception.

On the second question, compelled speech, the debate concerns whether Phillips is forced to endorse something that his religion rejects. Notre Dame Law Professor Richard Garnett offers West Virginia v. Barnette (1943) as the crucial precedent. In Minersville School District v. Gobitis (1940), the Court permitted a school district in Pennsylvania to compel flag salutes. The consequences for the Jehovah’s Witnesses who refused included violence (tarring-and-feathering, castration); expulsion from public schools; and families’ being forced to shoulder the costs of private schooling. Three years after Gobitis, Justice Robert Jackson’s important Barnette opinion put an end to the “[c]ompulsory unification of opinion” by freeing Witnesses from flag salutes.

In this same vein, in Wooley v. Maynard (1977), George Maynard, a Jehovah’s Witness, cut the last two words of New Hampshire’s state motto, “Live Free or Die” from his license plate, and won his case. The Court concluded that Maynard was unconstitutionally forced to bear the “State’s ideological message.” In contrast, in US v. O’Brien (1968), a case cited in Masterpiece’s oral arguments, the Court held that prohibiting the burning of draft cards to protest the war was only an “incidental restriction” of expressive speech.

Even if Phillips wins, the question of who else is protected quickly becomes opaque. In the oral arguments, Phillips’s lawyer argues that architects, hairstylists, makeup artists, tailors, chefs are not protected, whereas jewelers may be, and bakers, florists, and invitation-designers should be protected.

Opening rainbow zebra-crossing Vlissingen” by Henk Kosters is licensed under CC BY NC SA 2.0

Are cakes protected speech?

But if the Court thinks that cake-baking is expression, they can rely on a variety of precedents. In some famous decisions, they protected a right to wear armbands (Tinker v. Des Moines Independent Community School District, 1969), fly flags (Stromberg v. California, 1931), and burn the American flag (Texas v. Johnson, 1989). The Roberts Court has also shown in cases such as US v. Alvarez (protecting a right to tell lies about receiving military medals), Snyder v. Phelps (protecting the right of the Westboro Baptist Church to protest near funerals), and Elonis v US (protecting speech that stops short of a subjective intent to utter true threats) that its inclination is to be fairly absolutist about protections of speech under the First Amendment. In contrast, the Colorado administrative court rejected the compelled speech argument on the grounds that baking a cake is “simply not ‘speech.’

The Court may also decide to make a narrow ruling that baking an artisanal cake is protected speech, and either stop at artisanal cakes, open the floodgates (to bartenders, limousine drivers, florists, photographers), or punt the issue for another day.

If they stop at cakes, there are lower-court precedents to rely on. In Elane Photography, LLC. V. Vanessa Willock (2013), the lawyer for Elane photography argued that the co-owner, Elaine Huguenin, “not her customer, is the speaker communicating through her photographs” when she is asked to take pictures at a same-sex wedding. The Supreme Court upheld the decision of the New Mexico court, which held that the First Amendment “does not exempt creative or expressive businesses from anti-discrimination laws.” In Washington v. Arlene’s Flowers, Inc. (2017), the Washington State Supreme Court decided against Baronelle Stoltzman, a florist who refused to provide flowers for a same-sex marriage because of her Baptist beliefs. The justice in that case concluded that “[d]iscrimination based on same-sex marriage constitutes discrimination on the basis of sexual orientation.”

If the Court decides to get into the weeds, they can draw on Mastrovincenzo v. The City of New York (2006), a lower court opinion about New York’s street vendor law. The opinion enlarged upon an earlier decision exempting “any paintings, photographs, prints and/or sculpture” from licensing requirements by adding graffiti-covered shirts to the list of exemptions. Mastrovincenzo is cited by Solicitor General Noel Francisco in Masterpiece’s oral arguments as providing a workable standard protecting a wide range of expressive speech.

The Court could also develop its earlier, speech-protecting decisions in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston and Boy Scouts of America v. Dale. The Court could decide that parades of veterans marching to make a point (Hurley) and private groups (the boy scouts in Dale) are analogous to private businesses open to the public, such as bakeries, or they could deny those previously established protections to Phillips.

Enlarging protections against same-sex discrimination

On the third topic, discrimination, one key variable for court-watchers is Justice Anthony Kennedy. During oral arguments, Kennedy accused Colorado’s Civil Rights commissioners of bias and called Colorado’s argument that the rejection of same-sex marriage is tantamount to anti-homosexual bias “facile.” Kennedy’s words suggest that he is conscious of his role as midwife to sexual intimacy rights and may think that protecting those rights requires them to be free from any odor of discrimination. Thus, Kennedy may analogize the case to the Church of the Lukumi Babalu Aye v. City of Hialeah (1993), where a city in Florida passed a city ordinance specifically aimed at prohibiting the practice of the Afro-Cuban religion of Santería. Exchange Christianity for Santería, and you may have a valid free exercise claim.

Whatever the outcome, Masterpiece Cakeshop has become the most talked-about case in the Supreme Court’s current term. The furor is surprising. As Jeffrey Toobin has observed, the partisan gerrymandering case, Gill v. Whitford, is far more important for the democratic process. However, it may be that the very accessibility of the question raised in the cake-making case makes it of greater interest to the public than the “sociological gobbledygook” of gerrymandering. Given the accessibility of the question, a non-partisan decision appears to be crucial for the continued legitimacy of the Supreme Court.

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Note:  This article gives the views of the author, and not the position of USApp– American Politics and Policy, nor of the London School of Economics.  

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About the author

Chris Barker – Southwestern College
Chris Barker is an Assistant Professor of Political Science at Southwestern College where he teaches political thought. He has previously held positions at Ohio University, Boston College, and Harvard University. He recently completed his first book manuscript on John Stuart Mill’s liberalism. His most recent articles have appeared or are forthcoming in Review of Politics; History of European Ideas; American Political Thought; and Law, Culture and the Humanities.

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