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.


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