Cake, Controversy—And the Common Law

In 1922, the voters of Oregon passed an initiative requiring that by the fall of 1926, all parents of primary-school-aged children in the state send them to public schools. On June 1, 1925, the U.S. Supreme Court struck down that law in the case of Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, holding that the Due Process Clause of the Fourteenth Amendment secures “the liberty of parents and guardians to direct the upbringing and education of children under their control,” thereby allowing the Sisters’ school to stay open.[1]

The decision made no mention of the First Amendment, which was not held applicable to the states until Gitlow v. New York, decided the following week.[2] Nor did the Court pay special attention to the Sisters of the Holy Names as a religious society, noting simply that, like the military academy that joined the society in seeking an injunction against enforcement of the act, it was incorporated under Oregon law and its property was put at risk by an act that would forbid the school’s patrons from purchasing its services.

To this day, the freedom to send one’s children to religious schools (or rather, to non-public schools) rests on this decision, and while constitutional battles have raged in the interim over public assistance to such schools, as well as over the jurisprudence of Due Process, the precedent seems well settled. It would not be had the Court decided to grant an exemption to the Sisters on religious grounds—which exemption, had it survived the school prayer cases of the early 1960s,  might have fallen in 1990 with the Smith v. Employment Division holding against exemptions from generally applicable laws.[3]

Pierce did not address the argument that might be made in favor of mandatory public education in a progressive democracy (though John Dewey was at the height of his influence at that time) nor the argument in favor of religious education as critical to religious freedom (though the Catholic Church was in the process of building an alternative school system across the land). Instead, the Court, drawing on a right deeply embedded in the common law tradition, affirmed the great compromise of American education—tax-supported public schools alongside private and religious schooling—in a way that has endured for nearly a century.

A Window for Compromise?

Is there a similar way to avoid a collision course between the demands for equal recognition raised by sexual minorities and the religious liberty claims raised by practitioners of faiths whose code of sexual conduct condemns what the others celebrate? Now is the moment to consider this, since whatever one thinks of the decision last week in Masterpiece Cakeshop v. Colorado Civil Rights Commission,[4] it is easy to see that the Court rested its decision on peculiarities of the case without settling the basic issues, giving the political branches some leeway, at least for a time.

In the first place, Justice Anthony Kennedy noted in his majority opinion that the case had arisen before same-sex marriage was recognized in Colorado, so Jack Phillips, the baker, should not be thought to have spurned a gay couple in the process of exercising what only subsequent cases deemed a federally protected constitutional right.

In the second, more widely noted, place, the anti-religious comments of a member of the Colorado Civil Rights Commission gave the justices evidence of animus, leaving open the question of where they would have come down if the outspoken commissioner had been more discreet in what she said on the record. Justices Kagan and Breyer made clear that but for such comments, they would have upheld the initial ruling against the baker by the original administrative law judge (the Commission had heard an appeal), who, as Hadley Arkes has pointed out,[5] was not alleged to have been unfair.

Religious Liberty and Public Accommodation

However unsympathetic the boorish commissioner and however sympathetic Mr. Phillips, the general issues involved are not easy ones. On the one hand, anyone with religious convictions can understand how oppressive it is to force someone to act against them, or rather, to punish someone for refusing to act against them. Even when the command is not categorical and the pressure is social or economic, not legal, the situation is regrettable, except perhaps for the opportunity it affords to prove one’s courage. Those without religion, or without a strict one, might empathize with the baker if they reflect on circumstances where they have been induced to act against their moral beliefs or made to betray a friend.

On the other hand, public accommodations are essential to membership in society, and the push for an end to racial discrimination in transportation, parks, restaurants, theaters, and places of business more generally was central to the historic struggle for civil rights. When the Supreme Court in 1883 struck down Congress’ first attempt to prohibit race discrimination in such accommodations, Justice John Marshall Harlan wrote in dissent about the common law precept requiring common carriers and innkeepers to admit all who conduct themselves properly and pay the fare, which he thought a fundamental liberty that Congress under the Thirteenth and Fourteenth Amendments might protect, and 13 years later he reiterated his argument when, again as sole dissenter, he objected to the Court’s approval of state statutes mandating segregation.[6]

Nor is this only a matter of ancient law. Christians take as much offense as any other group when restaurants refuse them service because of their identity, even if some are too charitable to complain.

The distinction I would look to is that between places of business that are open to the general public, as against the supplying of a good or a service through a private contract. This distinction is widely recognized, and runs throughout the whole economy. It distinguishes, for example, the restaurant from the catering service, the clothing store from the tailor, the developer of tract housing from the home-builder. In my own line of work—I’m a college professor—there is a parallel difference between, on the one hand, lecture courses open to any student who is admitted to study at the university and who meets the prerequisites, and on the other hand, independent study courses or thesis research.

In the first of each pairing, service would be due to all who are willing to pay and who comport themselves decently; in the second, the patron and the service-provider would both have to agree to the arrangement in order for there to be a sale or relationship. The first category would be covered by modern anti-discrimination law, which, as Justice Harlan pointed out over a century ago, was meant to reinforce the common law principle of serving all comers by specifying categories where unjust discrimination had been taking place. The second category respects the basic liberty of contract—a liberty that, while no longer invoked as a constitutional barrier against legitimate regulation in the public interest, nevertheless remains the basis of a free economy.

Distinguishing Public Businesses from Private Contracts

As with any legal distinction, drawing this line might prove difficult in some instances. A restaurant might provide catering on the side. (I presume the line would fall between on-site and off-site catering, but maybe those engaged in the business would see it differently.) Department stores that sell fine clothing used to, and sometimes still do, have in-house tailors. Housing developments might be personalized enough to offer several different floor plans by the same builders.

In transportation, the line is not drawn between the bus and the taxi, but between the taxi- (or, I presume, Uber-) driver and the chauffeur. But good legal draftsmanship ought to be able to find the appropriate divide in every sort of arrangement. In federal housing law, for example, racial discrimination is prohibited in most apartment rentals, but owners can choose their tenants freely when they live in the building and offer four units or fewer for rent, an accommodation that has held stable for 50 years.

The “gig economy” might seem to complicate matters, as many services that used to be provided in-house are increasingly supplied on contract. But since every sale is technically a contract anyway, the line I propose is not between a sale and a contract, but between services offered to the general public and those negotiated between particular individuals. (Attorneys, it might be noted, operate almost entirely by private engagement, although perhaps the growth of legal services via the Internet will place some of them on the public side of the line.)

There is compromise among all parties in accepting such a line, I realize. Business owners all the time make decisions about what sort of customers they mean to attract, and they have many ways of reassuring their clientele, by decor, style, background music, and the like, whether their commerce is conducted online or in “brick-and-mortar” establishments. Since tastes differ, what attracts some repels others; but we allow taste to be discriminating without considering it discriminatory, letting the market determine success and recognizing that success can take many forms, from the high-volume “big box” to the niche-market boutique, with new competitors emerging to satisfy unmet tastes and wants in either direction.

Those in need of contract services often find themselves having to invest a lot of time and effort to find the right provider, while providers surely find themselves having to rein in what they would really like to do in order to attract enough customers to build a successful business. One of the compromises quickly learned, I suspect, is discretion in what one says when declining a job. A caterer can conclude, “I’m afraid it won’t work out,” without commenting on the cleanliness of a potential client’s kitchen or the iconography of the home.

Might there be someone who cannot find a contractor? It is possible, but in a vibrant economy not likely—though of course one might have to settle for one’s second or third choice. Perhaps from time to time in my academic department there is a student who meets the criteria through coursework to be eligible to write a thesis but who has trouble finding an advisor. Yet as far as I know, one or the other of us eventually agrees to take the student on, whether to earn credit with our colleagues or to take on a particular challenge or simply from a sense of duty.

Markets are not perfect, but when sufficiently complex, they usually accommodate the many considerations that enter into people’s choices, on both sides of every bargain.

Don’t Go the First Amendment Route

In his concurrence in Masterpiece Bakeshop, Justice Clarence Thomas suggests the case should have been decided on the grounds of freedom of expression: The gay couple would be forcing the creative baker to say what he does not want to say, and the state that punishes him would be inhibiting him from saying what he wants.

While the analysis might be true in the case at hand, invoking the First Amendment in such matters seems unworkable as a legal principle, as it would protect either too much or too little. Isn’t every cake expressive of a sentiment, whether a common one in mass production or a refined one in a work of high craftsmanship? Refined sentiments and ordinary ones might be readily distinguishable in aesthetics, but trying to separate them out legally would move free speech law in a new direction. Would the craftsman-artist be allowed on First Amendment grounds to control the use to which his product might be put? Again, this raises an interesting aesthetic question, addressed in part by areas of law such as copyright and trademark, but to insert the First Amendment into such matters seems likely to raise unanticipated complications. One would have to be blind to developments in industrial design in recent decades not to see that offering constitutional protection to products that have an expressive dimension might reach very far indeed.

As has probably been evident, I think the distinction between business offered to the general public and contract service ought to be drawn in the first instance by legislatures, not by courts. While courts inevitably get involved in interpreting legislation and would likely unfold such a distinction through analogy in areas not explicitly mentioned in a statute, trying to invent a constitutional rationale for every issue in a complex society seems to me to make law too rigid and too arbitrary—rigid, because constitutional law tends to raise the moral stakes in every dispute and make compromise difficult even when appropriate; arbitrary, because when, as here, genuine claims on behalf of constitutional values can be made on both sides, necessitating a novel balance of some sort or another, a Court’s determination is unaccountable to the people while possessing no claim higher than the people’s to make fundamental law.

The line drawn by legislation might be no less arbitrary, to be sure. But it would be less rigid, and therefore more amenable to correction if mischiefs developed or public opinion changed.

That objection applies as well to using religious exemptions to solve the underlying issues involving public accommodations. I do not deny that there might be some instances where religious exemptions are appropriate given longstanding practice or indisputable rights of conscience. Legislatively-granted exemptions are sometimes wisely conferred. Even so, I think the effort to appeal to judges to invoke the First Amendment is generally misguided if only because, on issues from school prayer to obscenity, the drift of modern courts has been hostile to the religious sensibility.[7] If Justice Kennedy this time recognized anti-religious animus in unguarded remarks, remember that he helped initiate the whole modern jurisprudence of gay rights by finding animus in a state constitutional provision that arguably did no more than uphold the traditional teaching, often religiously expressed, on sexual morality.[8]

Better, I think, to find a compromise on the commercial questions and then allow the experience of the market to encourage people to reconsider their preconceptions. As has been recognized at least since Montesquieu, commerce tends to undermine destructive prejudices,[9] by reminding us of the benefits of harmonious relations as well as by allowing us to make our own choices and cultivate our own friends.

And better, too, to make these compromises through representative institutions, particularly on the state and local level, where we are obliged to work together with those with whom we happen to live, to build coalitions with those with whom we only partially agree, and to face our opponents today as those whom we might need as allies in other circumstances tomorrow.

Yes, settling on a formula is less satisfying to both sides than converting one’s opponents. But conversion requires persuasion, not coercion, and finding a compromise to which both sides might consent is a decent first step.

[1] Pierce v. Society of Sisters, 268 U.S. 510 (1925).

[2] Gitlow v. New York, 268 U.S. 652 (1925).

[3] Engel v. Vitale, 370 U.S. 421 (1962); Abington School District v. Schempp, 374 U.S. 203 (1963); Employment Division v. Smith, 494 U.S. 872 (1990).

[4] Masterpiece Cakeshop vs. Colorado Civil Rights Commission, decided June 4, 2018.

[5] Hadley Arkes, “Conservative Jurisprudence Resorts to Relativism,” First Things, June 6, 2018.

[6] Civil Rights Cases, 109 U.S. 3 (1883), at 37 ff.; Plessy v. Ferguson, 163 U.S. 537 (1896), at 553 ff.

[7] But see John Eastman, “Why the Masterpiece Ruling Is Truly a Major Win for Religious Liberty,” The Federalist, June 6, 2018.

[8] Romer v. Evans, 517 U.S. 620 (1996).

[9] Charles-Louis de Secondat, Baron de la Brède et de Montesquieu, The Spirit of the Laws, Book 20, Chapter 1.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on June 13, 2018 at 13:32:08 pm

Hmm. . . the "bespoke" or "tailor made" rule in cases where federal jurisdiction is based on the commerce clause.

I like it but it leaves unaddressed the enormous problems that have arisen associated with the Supreme Court's incorporation of the 1st Amendment into the 14th Amendment. There is no basis for incorporation and the doctrine has left the freedoms of speech, religion and association in shambles.

It's not surprising that the only 1st Amendment right the incorporation doctrine has strengthened is the freedom of the press and God knows the Nazgûl love nothing more than good press.

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on June 13, 2018 at 14:20:08 pm

When engaging in commerce, in private, or in public, it is not necessary, nor is it proper for any person to serve in a capacity that would coerce them into violating their Faith and/or morals.

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Image of Nancy
on June 13, 2018 at 14:59:45 pm

I think the writer must mean executory contracts as opposed to executed contracts. Someone who walks into a cake shop open to the public and buys an already-made cake has just concluded a private contract with the shop, where the performance of both parties occurs simultaneously. If I get home and discover a dead frog in the cake, I have a contractual right to return it on the basis of breach of implied warranty.

However, each diner in a restaurant open to the public makes a separate, private, executory contract with the restaurant: the restaurant serves the food, which I eat, and only then do I pay; the food having been served on only my promise of future payment. Yet I presume that the restaurant cannot decline to enter into such a private contract with a gay diner. So the executory/executed distinction appears useless, as does the notion of "private contract" generally. It is also my understanding of Masterpiece that, had the gay couple gone in and just ordered a standard cake of the type the store sold generally, but which it was out of stock at at the time, the owner, though he knew they were gong to serve it at their wedding, would have said "come back tomorrow at noon and it will be ready." So the owner in that case would have communicated a willingness to enter into a future private contract with the gay couple.

I doubt that the Masterpiece shop owner would have refused to make a custom birthday cake for a gay man, even if he knew he was gay. So even the "bespoke" versus "off the shelf" distinction does not seem workable either. In Masterpiece, as I understand it, it was the combination of the custom cake with the specific event for which it was ordered that led to the denial by the owner.

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on June 13, 2018 at 16:44:12 pm

Celebrating a birthday is not a violation of respect for the inherent Dignity of the marital act, which is life-affirming and life-sustaining, and can only be consummated between a man and woman united in marriage as husband and wife, and thus celebrating a birthday does not result in someone being coerced into violating one's Faith and or morals.

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on June 13, 2018 at 18:51:04 pm

"Even so, I think the effort to appeal to judges to invoke the First Amendment is generally misguided if only because, on issues from school prayer to obscenity, the drift of modern courts has been hostile to the religious sensibility."

Now that is a pusillanimous approach. I am confident that Prof. Stoner may provide us with a somewhat more compelling reason for not seeking 1st amendment Protections.

And as others have commented, the "private contract" approach does not work either.

why not something simple:

Does this *accommodation* (or more precisely, NON-accommodation) threaten health or safety as would be the case were an innkeeper to deny a room to a traveler?

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on June 13, 2018 at 20:38:10 pm

Interesting analysis, admirable for its creative resort to the common law but utterly unpersuasive as a way out of our historically- unequalled judicial labyrinth because 1) it evades the central constitutional matters of speech, religion and conscience and 2) it would require bilateral resort to political compromise and statesmanship, feats that are a) well beyond our current SCOTUS, which in its hubris created the constitutional mess in which sexual license became equated with civil right and constitutional liberty and b) well beyond the tolerance of the sexual liberationist-aggressors who seek power, not justice or reason, unconditional surrender, not compromise, and unabashed, openly espoused public approval not mere tolerance.

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Pukka Luftmensch
on June 14, 2018 at 10:29:05 am

"... well beyond the tolerance of the sexual liberationist-aggressors who seek power, not justice or reason, unconditional surrender, not compromise, and unabashed, openly espoused public approval not mere tolerance."

You understate the case as they now appear to be engaged in active recruiting for new "disciples" if the pedagogy of the "maleducators" (aka K-12 teachers) is considered.
Billy is momentarily fascinated by a rhinestone embedded jacket that Sally is wearing; therefore, Billy must be encouraged to follow his female gender preference. All done under the cover of tolerance and openness.
And only the 3rd - 4th rate minds of the *annointed* may be said to be capable of perceiving this gender preference in a child who has absolutely no conception whatsoever of gender. Never fear the annointed will administer the new sacrament of gender fluidity; then again, perhaps they are unknowingly administering the Last Rites and not a New Birth for our culture.

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gargamel rules smurfs
on June 14, 2018 at 10:44:45 am

Oops, forgot this:


And a snippet from the essay (note well the part about parents being kept uninformed).

"In February, Indiana’s Republican-controlled House gutted a bill that would have required schools to get parents’ informed consent to teach children LGBT ideology such as sexual orientation and gender identity. The controlling committee also deleted a requirement that parents be allowed access to all sex-related instructional materials that might be used with their children. So, thanks to this act of legislative cowardice, as Margot Cleveland wrote here at the time:

[Indiana public] Schools may teach children as young as age five that a boy can become a girl or a girl can become a boy. Teachers may tell students that they must refer to a transgender student as belonging to a false sex and using incorrect pronouns. In other words, it allows exactly what transpired in a California kindergarten in August.

Republican leadership told constituents they didn’t protect kids by passing the bill because there was no reason to. They said it was utterly ridiculous to think schools in red-state Indiana might use taxpayer dollars, facilities, employees, and other resources to indoctrinate kids with LGBT gender politics.

Yet the Brownsburg policy says its schools will allow boys to compete in girls’ athletic and music events, and vice versa. It says boys will be allowed into girls’ locker rooms and bathrooms, and vice versa. It says the school will facilitate cross-dressing for gender dysphoric students wearing uniforms for athletic, musical, and other activities. These actions teach children just as fully and boldly as a direct statement of them in sex ed class would. By allowing this behavior, the school endorses it.

Brownsburg’s policy also requires and communicates highly ideological and scientifically false ideas about human sexuality, such as this: “What does transfluid mean? This gender identity is described as a mix between male and female. People who are transfluid report feeling more male at times and at other times more female.”

The document also suggests parents be kept in the dark about whether their children will be exposed to transgenderism merely by attending public school: “By federal law, the School is prohibited from disclosing any student’s personal information with members of the public. This includes answering questions about whether a transgender students is enrolled in the School or at a specific building.”

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gargamel rules smurfs
on June 14, 2018 at 21:22:30 pm

Interesting approach that raises some possibilities, but as-is it's simultaneously too broad and narrow. I don't think you can get away from the first amendment issue. If a white supremacist group stops in for dinner at a black-owned soul food restaurant on the way to the cross-burning, presumably the owner has to serve them. They're simply buying his products as any member of the public would, the same as they would buy the timber at the lumber yard and the matches at Safeway. But to compel him to cater the cross-burning would compel him to speak and participate in an event that goes against everything he believes. A DREAMER who sells American flag shirts to Donald Trump is simply providing goods on an equal basis to everyone, maybe we should compel him to do so. But requiring the DREAMER to print up "MAGA! Build the Wall!" shirts is compelling speech. It's like requiring the New York Times--a corporation engaged (just like a bakery) in for-profit commerce--to publish editorials they don't believe in. Forcing people to say things they don't believe under threat of punishment--thus making them guilty and complicit--is quintessentially totalitarian.

Legislative activity won't avoid problems with the judges. The Defense of Marriage Act tried to do that, and judges just did what they wanted anyway.

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Frank Snyder
on June 15, 2018 at 12:36:41 pm

"Legislative activity won’t avoid problems with the judges. The Defense of Marriage Act tried to do that, and judges just did what they wanted anyway."

True, because for so many of these judges, "who am I to judge", in regards to discriminating between appropriate and inappropriate sexual desires/inclinations/orientations, and sexual relationships, has become the new common law for those who no longer believe our inherent dignity comes from our having been created to live in Loving relationship with one another, in communion with God, The Most Holy And Undivided Blessed Trinity.

"At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."- The anti -dignity clause.

In a Nation that recognizes that God, not Caesar or oneself, Is The Author of our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, the anti Dignity clause, is,in essence, a suicide clause.

"When the freedom to be creative becomes the freedom to create oneself, then necessarily the Maker himself is denied and ultimately man too is stripped of his dignity as a creature of God, as the image of God at the core of his being. The defence of the family is about man himself. And it becomes clear that when God is denied, human dignity also disappears. Whoever defends God is defending man." Our Holy Father, Benedict XVI, Christmas, 2012.

Only The Truth Of Love can set us free, and lead us to Salvation.

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Image of Nancy
on June 18, 2018 at 09:13:47 am

What a ridiculously sweeping statement ("there is no basis ..."). Akhil Amar, Randy Barnett, Michael McConnell, Kurt Lash among others have given tons of evidence for incorporation. I understand there's another side. But the "no basis" simply isn't true.

I also have a hard time understand how UNincorporating or a fictional world where SCOTUS never incorporated the B.O.R. would do anything to "strengthen" the rights contained in the FA. If anything it would permit states to not recognize those rights at all. And today the federalism works, if one isn't satisfied with federal FA protections, states are free to enact additional protections.

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Image of Jonathan Rowe
Jonathan Rowe
on June 18, 2018 at 20:33:14 pm

"This distinction is widely recognized, and runs throughout the whole economy."
Where is this distinction legally recognized? And what common law tradition is the author referring to that prohibits discrimination in offering non-essential services?

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Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.