Its Momentousness Is Baked in the Cake

Such is the state of American law and of American society that the decision of a single Colorado baker not to make a cake for a customer because of his religious objection to what the cake was for will now go before the Supreme Court. Argument in the “cake case,” Masterpiece Cakeshop v. Colorado Civil Rights Commission, will take place next Tuesday, December 5th.

Pastry chef Jack Phillips had opened his own one-shop bakery in a suburb of Denver after two decades of working in other bakeries. He called it “Masterpiece” with the intention of offering more artistic baked goods. In 2012, at a time when same-sex marriage was illegal in Colorado, two men sought to have Phillips supply a cake for a Colorado celebration of their wedding to take place in Massachusetts. Phillips, who serves homosexual customers for other occasions, said his Christian faith prevented him from being involved in same-sex marriages. The two men filed a complaint with the Colorado Civil Rights Commission, and their supporters picketed Masterpiece bakery. Another bakery gave the two men a free cake.

The Colorado Civil Rights Commission found Phillips in violation of the Colorado Civil Rights Act, which forbids the denial of service in a “place of public accommodation” for, among other reasons, “sexual orientation.” The Act exempts churches and places “principally used for religious purposes.” The commission found Phillips guilty of a violation of the statute and required: that he bake cakes for same-sex weddings or give up baking wedding cakes altogether; that he keep records for two years of any bakery orders he rejected; and that he “take remedial measures, including comprehensive staff training.”

Phillips employed members of his family in his bakery, so the “comprehensive” retraining involved them. His continuing to refuse to bake for same-sex weddings cost him  40 percent of his business and most of his employees. When he appealed to the Colorado Court of Appeals, that court upheld the commission’s decision. The Colorado Supreme Court refused to review the appeals court, so the appeal was taken to the U.S. Supreme Court.

Masterpiece’s defense is a multi-faceted invocation of the Free Speech and Free Exercise Clauses of the First Amendment. Phillips claims that requiring him to bake a cake with a message on it for a gay wedding would violate his free speech rights as an artist; would force him to engage in unwanted “expressive conduct”; and would require “compelled speech” of him. Forcing him to participate in a same-sex wedding would, moreover, violate his right to the free exercise of religion. Finally, he argues that free speech and free exercise rights combine into a joint “hybrid” right all its own.

Masterpiece represents the new kind of constitutional law that is emerging from certain states and their courts. In four other cases, state courts have ruled against Christians seeking to avoid participation in same-sex weddings. In the case that was tried in New York, a court ordered a Christian married couple who rented out their farm for various occasions to host a gay wedding, fined them $10,000, awarded $1,500 in compensatory damages to each of the lesbian partners for “hurt, humiliations, and mental anguish,” and ordered the farm’s owners to “establish anti-discrimination training and procedures at the farm.”

In Elane Photography v. Willock, the bedrock case cited in almost every brief filed in the Supreme Court in Masterpiece, the New Mexico Supreme Court ruled and awarded attorney’s fees against a Christian photographer who had refused to photograph a commitment ceremony of two women. A court in Washington state ruled against a florist who had previously sold flowers to the same gay man about 20 times; when the man brought up buying flowers for his same-sex wedding, she refused based on her Christian beliefs about marriage. An Arizona court ruled against a printer of, among other items, wedding invitations, who had a policy of refusing to do printing for same-sex weddings.  The printer had other policies concerning whom she would not print for: businesses that she believed exploited the environment or exploited women or objectified the female body.

Free Speech

Citing his own concept of his baking as an art, including the extra work involved, Phillips maintains that his custom cakes are artistic expressions protected by the Free Speech Clause. In support, he primarily cites the case of Ashcroft v. Free Speech Coalition (2002), in which the Supreme Court held the federal Child Pornography Prevention Act of 1996 to be unconstitutional because it was overbroad and prohibited speech of “serious literary, artistic, political, or scientific value.” The Colorado appeals court, while recognizing the skill and art involved in making a cake, concluded that the expressiveness of the cake was more likely to be attributed to the customer than to Phillips and, that, therefore, Phillips personal free speech rights had not been violated.

Phillips also argues that his cake-baking is the kind of “expressive conduct” that the Court has recognized as protected by the Free Speech Clause. He cites Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995), in which the Supreme Court turned back that group’s attempt to force its way into the Boston St. Patrick’s Day parade. In the decision the court said: “the Constitution looks beyond written or spoken words as mediums of expression.”

Likewise in Texas v. Johnson (1989), the Court found flag-burning to be expressive conduct and ruled that a Texas statute forbidding the desecration of certain public objects violated the Free Speech Clause. The Court ruled there that “speech” was not limited to the spoken or written word; that the physical act of flag-burning was expressive; and that government may not “proscribe particular conduct” that has such expressive elements.

In opposition, the Colorado Civil Rights Commission, and supporting amici, point to Rumsfeld v. Forum for Academic and Institutional Rights (2006), wherein the Supreme Court ruled that a federal law requiring universities to allow military recruiters on campus as a condition of federal funding was constitutional under the First Amendment. The Court found that the challenged statute affected conduct, not speech, and did not have the effect of requiring universities to endorse or approve the work of the recruiters.

Phillips’ legal adversaries likewise adduce the Supreme Court’s decision in Unites States v. O’Brien (1968), which upheld another federal statute that criminalized the burning of  draft cards. The Court stated that the effect on the “symbolic speech” of the antiwar card-burners was incidental and not greater than necessary.

Quoting the Supreme Court in Wooley v. Maynard (1978), Phillips argues that the First Amendment “prohibits ‘compelled speech’ and protects the right of individuals to hold a point of view different from the majority and to refuse to foster . . . an idea they find morally objectionable.” In that case a Jehovah’s Witness, objecting on the basis of his religion, took the words “or Die” off the license plate of his car, which, like all other New Hampshire plates, displayed the state’s “Live Free or Die” motto. The Court ruled that New Hampshire could not force him to display the full message.

In West Virginia v. Barnette (1943), the Court had upheld the right of a Jehovah’s Witness schoolchild to refuse to salute the American flag or recite the Pledge of Allegiance. Barnette, like Wooley, was a free speech case that was initially filed as a free exercise case. Barnette is the source of the much-quoted statement about the “fixed star in our constitutional constellation” that “no official” may “prescribe what shall be orthodox” in “matters of opinion.”

In opposition to Phillips’ claim that compelling him to bake a cake is also an unwanted compelling of his speech, the state of Colorado and its amici argue that the imposition on Phillips’ free speech rights is minimal and its effect “unlikely” to be interpreted as his personal speech. The commission maintains that the Colorado law requires only conduct, not expression, from Phillips and that “the compelled conduct here is not expressive.”

Free Exercise of Religion

Phillips argues that requiring him to bake same-sex wedding cakes would make him a compelled and “an active participant” in a “sacred event” not of his choosing. He cites the 1993 case of Lukumi Babalu Aye v. City of Hialeah, in which the Supreme Court overturned city ordinances banning the possession of animals for sacrifice. Members of the Santeria religion alleged that the animal sacrifice was central to their religion and that the ban violated their free exercise rights. Lukumi was built on the older case of Sherbert v. Verner (1963), in which the Court required that unemployment benefits be paid to a Seventh Day Adventist who had been fired because she refused to work on Saturday.

In Lukumi, the Court concluded that it must go outside of the text of the city ordinances to look at “the design” and “motivation” behind the ordinances. “Apart from the text,” the majority opinion declared, “the effect of a law in its real operation is strong evidence of its object.” The Court held that the ordinances were not a neutral attempt to prevent cruelty to animals but that their sole purpose was “the suppression of Santeria’s central element, animal sacrifice.”

In what has become a legal landmark, the Lukumi Court went outside of the language of the enacted ordinances and emphasized statements in related city-council resolutions and statements of council members that showed what the council really intended: “suppression of the central element of the Santeria worship service,” for “it cannot be maintained that city officials had in mind a religion other than Santeria.” (One thinks here of the federal courts’ nullifying President Trump’s refugee executive orders by going “outside the text of a law” —judges cited the statements of then-candidate Trump and said these were key to discerning President Trump’s purpose in promulgating those orders, which they found unconstitutional and discriminatory.)

Phillips picks up on the Lukumi Court’s going “outside the text” by arguing what the Colorado Civil Rights Commission really “had in mind,” namely, that “no one with Phillips’ beliefs stands a chance.” He cites the attitude of Commissioner Diann Rice, who said during the hearing of his case:

I would like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the [H]olocaust, whether it be—I mean, we, we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.

The main obstacle to Phillips’ free exercise claim is certain to be the decision of the  Supreme Court in Employment Division v. Smith (1990), in which the Court, with Justice Scalia writing the majority opinion, ruled that Oregon could deny unemployment benefits to two persons fired from their jobs for the illegal use of peyote. The two were Native Americans and had ingested peyote in a religious ceremony. The Court found that the state’s drug law was “a neutral law of general applicability” that was binding on users and non-users of peyote alike. It was not targeted at religion. If everyone could have his own religious objection to laws passed for the general welfare, that would in effect permit every citizen “to become a law unto himself,” the Court held.

As Court-watchers know, Smith cited and very substantially relied on Reynolds v. United States (1878), in which the Supreme Court ruled that Mormon polygamy could be prohibited notwithstanding a free exercise challenge in the then-territory of Utah. The more recent significance of Reynolds, be it noted, is that it was completely ignored by both sides in the Supreme Court’s two same-sex marriage cases. Why? Gay marriage advocates did not want the Court to consider a case in which it had upheld traditional marriage, and traditional marriage advocates did not want the Court to consider a case in which it had turned aside a free exercise claim.

Equally well known is that Smith engendered fierce bipartisan objections in the U.S. Congress. Senators Charles Schumer (D-N.Y.) and Ted Kennedy (D-Mass.) led the way in writing the Religious Freedom Restoration Act, which passed in 1993 nearly unanimously. The Supreme Court, however, later invalidated that part of the law which applied to acts of state governments. With its amendment in 1994, RFRA now applies only to programs of the federal government and requires a compelling governmental interest and the least restrictive means in burdening religion. That Act, not the Free Exercise Clause, was the basis of the Supreme Court’s 2014 decision in the Hobby Lobby case. Thus, Hobby Lobby has been only a tangential case in the free exercise briefings here in Masterpiece.

Phillips and supporting amici argue that Smith does not require a decision against him.  He cites Lukumi on “the effect of a law in its real operation”—in other words that the Colorado antidiscrimination law has not functioned as a neutral law of general applicability. The Colorado Civil Rights Commission ruled that cake artists who support same-sex marriage may decline a customer’s cake order if it called for writing a message on the cake in opposition to same-sex marriage, while also ruling, to the contrary, that bakers who oppose such marriages may be forced to decorate their cakes with pro-same-sex-marriage messages.

In addition, the commission had already endorsed, Phillips argues, the refusal of three bakers to serve customers who wanted messages on their cakes saying that homosexuality is a sin. Those proposed messages could be refused by bakers because they were “offensive,” the commission ruled. Nevertheless, it turned aside Phillips’ claim that the expressed and implied message that is conveyed by the preparation of a cake for a same-sex wedding was offensive to his religious beliefs. Thus did the commission, Phillips argues, afford “broader protection to LGBT consumers than to people of faith.” Overall, the commission concluded that any messages with which Phillips decorated the cakes of LGBT customers would be attributed by a “reasonable observer” to the customers, not to Phillips.

It is noteworthy that the full armada of liberal litigating groups has filed briefs against Phillips even though, as mentioned, it was liberals in the Congress who led the successful effort to repudiate the Smith decision. Apparently, the use of peyote but not traditional marriage is a bona fide religious cause. Like Commissioner Rice in Colorado, brief-writers taking the commission’s side consistently portray religion and sincerely held religious beliefs as enemies of society. The National Women’s Law Center writes that “women’s secondary status often was rooted in genuinely held religious beliefs.” The ACLU says in its brief that “if religious motivation exempted business from anti-discrimination laws, government would be powerless to protect all Americans from invidious discrimination.” Americans United for Separation of Church and State argues that a ruling in favor of Phillips “would violate the Establishment Clause.”

To say the least, very large and momentous issues of free speech and free exercise of religion are being raised in Masterpiece. It is possible that the Supreme Court will decide the case based on free speech alone and thereby avoid the necessity of ruling on free exercise. The Trump Justice Department filed a friend-of-the-court brief supporting Phillips in which it argued just that.

But the “cake case” raises questions even beyond the specific issues of constitutional law, important as these constitutional issues are bound to be. Can courts order, as a legal remedy, the “comprehensive” adjustment of people’s (including family members’) minds and attitudes? Does current law and public policy have no way of recognizing that the business of a solitary tradesman poses no threat to state or national economies or to anyone’s rights?