Phillips Likely to Win Masterpiece Cakeshop Case, Five Votes to Four

To the surprise of few observers, during oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission on Tuesday, the baker’s attorney, Kristen Waggoner of the Alliance Defending Freedom, almost completely ignored religious liberty arguments. This is only logical after Employment Division v. Smith (1990), which held that laws restricting the free exercise of religion need only be neutral and generally applicable. But this strategy might have made sense even without Smith given the way similar cases were decided in New Mexico and Washington, states that still require the strict scrutiny of religious liberty claims.

Instead, Waggoner emphasized that her client Jack Phillips, who has sincere religious objections to creating wedding cakes for same-sex weddings, is an artist being required by the state of Colorado to engage in speech to which he objects. Supreme Court justices have frowned on such compulsion in the past, perhaps most famously in West Virginia v. Barnette (1943), where they held that a state may not compel Jehovah’s Witnesses to salute and pledge allegiance to the American flag. In oft-quoted words, Justice Robert H. Jackson averred:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.

But had Phillips—who was found guilty of violating Colorado’s public accommodation statute by the state’s Civil Rights Commission—been asked to engage in speech or merely to bake a cake? Phillips has repeatedly contended that he would sell anything in his store to anyone, regardless of sexual orientation. He draws the line at expressing sentiments to which he has religious objections—including celebrating divorces, Halloween, or same-sex marriages. Such views may seem parochial and outdated to many readers, but whether we share his beliefs is beside the point. Few Americans agree with the Jehovah’s Witnesses regarding the pledge of allegiance, but they should be protected anyway.

Justices Sotomayor, Ginsburg, Kagan, Kennedy, and Breyer pushed Waggoner hard on the distinction she drew between bakers, florists, and photographers on the one hand, and such professions as hair stylist, makeup artist, and architect on the other. She maintained that for the most part, the latter, in doing their jobs, are not really engaging in speech but the former are. Ironically, Justice Breyer, who is expected to side with Colorado, pushed back with respect to architects, pointing to the examples of Ludwig Mies van der Rohe and Michelangelo.

Breyer’s point is not that the First Amendment should protect architectural speech; instead, he was highlighting the difficulty of distinguishing between professionals engaged in speech and those who are not. Without such a line, he contends, we could “undermine every civil rights law” including those protecting the ability of racial minorities to buy the “very basic things of life.”

Those opposed to protecting artists like Phillips are quick to invoke nightmare scenarios such as this. David Cole, the respondents’ attorney, in fact warned of a future where a “bakery could refuse to sell a birthday cake to a black family [and] a corporate photography studio could refuse to take pictures of female CEOs.” In short, we could find ourselves in “a world in which every man is a law unto himself.”

Who wants to live in such a universe? Not me. Yet as I have argued elsewhere, the national and state governments have crafted religious exemptions repeatedly without harming the common good. In the few instances where these accommodations cause significant damage, governments may repeal and have repealed them. If protections are required by the Constitution, virtually everyone agrees that if a government can demonstrate a compelling interest, it may override a liberty claim.

One could easily pose hypotheticals wherein the state would have a compelling interest in overriding the First Amendment, but in the real world there is little reason to believe that more than a handful of creative professionals have objections similar to Phillips’. In no reasonable sense does Colorado have a compelling interest in requiring this baker to engage in speech to which he has religious objections.

Jack Phillips should win this case on free speech grounds, and Justice Kennedy’s questions suggest that he is likely win by a 5 to 4 vote. Even should he do so, cases like this almost convince me to join my libertarian friends in advocating the repeal of public accommodation statutes. The free market will ensure that consumers have access to desired goods as it has already done in every real-world case involving creative professionals—and as it does for same-sex couples in the 29 states with no statewide public accommodations law prohibiting discrimination on the basis of sexual orientation.

I am almost convinced by the libertarian position . . . but not quite. In the American context, public accommodations laws banning discrimination on account of race were necessary to help overcome the nation’s dismal record with respect to race. An excellent case can be made that these laws are still necessary. As Phillips’ attorney conceded, if a creative professional objects to serving someone on the basis of race, the state may well have a compelling interest in requiring such service.

Masterpiece Cakeshop, like many difficult cases, involves competing rights. Many who consider the facts of this case will sympathize with the view that states should not compel speech and that individuals should not be discriminated against. The free market will resolve most cases involving invidious discrimination, but if states are going to remain involved in these issues they should revise their public accommodations laws to protect small businesses engaged in expressive activities. Such legislation will not end litigation over these issues, but it would significantly reduce it and would make fanciful appeals to dystopian futures less convincing. By focusing on the real world rather than hypothetical ones, we can make better progress protecting the rights of all Americans.

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 December 07, 2017 at 08:30:34 am

I agree that such public acomidation laws might have been neceseary to undo the harm caused by state compelled segregation, but that only really applies to race. But what is this excellent case that you speak of but don’t explain?

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Devin Watkins
on December 07, 2017 at 08:40:53 am

Ms. Waggoner, in a post-argument appearance sponsored by the Heritage Foundation indicated she her belief that Hurley v Irish-American Gay, Lesbian & Bisexual Group of Boston should be the controlling case in Phillips favor, even though the Court gave it very little discussion; her take is the Court was already so familiar with Hurley and its holding that they didn't see the necessity of raising it.

For anyone who is interested and didn't catch the presentation it can be viewed here: http://www.heritage.org/marriage-and-family/event/free-speech-takes-the-cake-can-states-compel-speech

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Image of Paul Binotto
Paul Binotto
on December 07, 2017 at 09:39:12 am

Striking down anti-discrimination laws could lead to a nightmare scenario where prostitutes can decide to only service men or only service heterosexuals or only service people over 20.

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Image of L Flynt
L Flynt
on December 07, 2017 at 09:58:33 am

https ://www .pop. org/federal-judge-overturns-indiana-law-banning-sex-selective-abortion/

Let's say a doctor won't perform sex-selective or race-selective abortions because he thinks it violates anti-discrimination law and Christ's Golden Rule; he'll only perform abortions that don't take sex or race into account.

Is the doctor violating a woman's right to have an abortion because she doesn't want a boy or doesn't want a black child? Or does the child have the right not to be discriminated against when being aborted?

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Jane Roe
on December 07, 2017 at 10:06:00 am

Thank you, Professor Hall, for taking the time to write a balanced analysis of the oral argument. I also appreciate your providing a transcript of it.

You may be correct in the tactical wisdom, under the circumstances, of appellants shying away from the religious liberty fight. But religious liberty, not artistic expression, is the heart of the constitutional matter. The issue really is Hobby Lobby without the federal statute; the cake was just an excuse to assault religious liberty and the "artist" was just an artful way to dodge the real question while trying to defend the central liberty. (Or, perhaps, it was just a back-up strategy, a grasp at the gold ring of Kennedy's vote if it could not be won otherwise.)

In either case, a win on the (comparatively) minor grounds of unconstitutional compelled artistic speech would simply postpone the real fight for another day and on the central fighting grounds, sort of like defeating Hitler in the battle of Italy, which was of little consequence, while avoiding the real war, the necessity of crushing him in the heart of Europe from the east and from the west.

For that reason, I think 1) that the Court will decide the case on religious liberty grounds, 2) that the outcome is dependent on which side catches the fickle mind of "the human jump ball" and 3) that Kennedy, impressed by his own exalted rhetoric, will conclude that "the mystery of human life” embraces one's freedom from state compulsion to say what contravenes one's faith.

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Image of timothy
on December 07, 2017 at 10:44:26 am

Our inherent Dignity comes from God.
If The Supreme Court rules against the baker, Jack Phillips, and Jack Phillips is “compelled to create a cake that expresses approval of same-sex marriage", it will be due to the fact that the majority contend that our Constitution no longer serves to protect those persons who respect the Sanctity of the marital act, and the self-evident truth that God, Who Has Endowed us with our unalienable Right to Life, to Liberty, and to The Pursuit of Happiness, Is The Author of Love, of Life, and of Marriage.
In the real world, that would be a nightmare.

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Nancy D.
on December 07, 2017 at 12:00:13 pm

What has given rise to this issue and the way in which it impacts individual liberty? Is it really about "speech" or "religion" (just because there are judicial precedents or references in historic [Constitution, e.g.] documents)?

If we look more carefully what will we find?

Begin here:

". . . virtually everyone agrees that if a ** government** can demonstrate a compelling interest, it may override a liberty claim."

Move on to:

"As Phillips’ attorney conceded, if a creative professional objects to serving someone on the basis of race, the **state** may well have a compelling interest in requiring such service." [**added]

People, individual human beings, have "interests," the argument that the "government" or the State" may have a "compelling interest" is purely a judicial construct - implying (at best) that the Government and the State are synonymous with "Society" (comprised as it is of individuals).

Those cases where large groupings within a society have a particular interest (whether economic, sociological, or otherwise) and seek to use the mechanisms of government for its advancement, do not create a "government interest." Oligarchs or tyrants using the forces of a State to advance their interests do not create an interest of the State.

In short, governments and states do NOT have interests - people do, and use governments and states for those ends. In our current conditions, this has been done chiefly through Rules of Policy (legislation, regulations, ordinances and their excrescences).

So, if there are "compelling interests" directed through government action, they are generated by legislation, which in this case impacts a particular freedom that is being ignored at the peril of accelerating fissions in our social orders.

That freedom is the freedom to associate, or freedom from association that constitute the individual liberty of freedom of association. That freedom rests upon individual determinations - selections, sometimes for objectives (commerce, e.g.) but upon other motivations as well.

Historically (and by daily experience) human associations have been matters that have fallen under "Private Law ," not related to the organization or functions of the "State" or governments ("Public Law"). Our legislatures have departed from that history with the creation of conditional constraints on private associations and impositions of obligations (coercions) for particular ends of particular interests. Much has been framed as providing for (designing) a "better society" or eliminating flaws in society as it has developed.

It may seem strange to assert, but our society, has come more slowly into the "Open Access" to freedom of association and to the free formation of associations than many would think. Latterly, we appear to show signs of recession from that "Open Access," and some actual suppressions.

One sign may be seen in the failure to observe the effects of trying to "improve" society by the invasion of legislation into the areas of private law - as here; where this case arises as a matter of freedom of association - not as the "compelling interest of the State."

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R Richard Schweitzer
on December 07, 2017 at 13:27:17 pm

Thanks to all for comments, but I have time just to address Timothy's. I agree! After I finished the piece that was published I started adding sections contending that although Phillips should win on free speech grounds, he also should win on Free Exercise or freedom of conscience grounds as well. But I was already at 1,000 words and had to stop. I would not be sad if the Court overturned Smith and returned to Sherbert--esp. if they really applied strict scrutiny. Barring that, I think one can make good freedom of conscience arguments.

Consider the example of an architect. Let's say she was asked to design an abortion clinic or slaughterhouse to which she has conscientious objections. There is little speech there, but her conscience should still be protected. Here is an example of how such an argument might work:


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Mark David Hall
on December 09, 2017 at 09:04:13 am

You can have your theocracy, as long as l get to choose the religion. Matt. 7:12.

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Image of Trevor Chase
Trevor Chase
on December 09, 2017 at 10:19:02 am

Trevor, your comment makes no sense! Nancy D. asks not for a "theocracy" but that we honor our constitutional and cultural heritage of religious liberty. I've seen no comment on Professor Hall's article that asks for a "theocracy" or whose implications would lead to one. The appellant in Masterpiece Cakeshop asks for no "theocracy." A decision in his favor that the First and Fourteenth Amendments prohibit the state from compelling him say and do what is contrary to his Christian conscience and his Christian faith (Christian orthodoxy and orthopraxy) is certainly not asking for nor could it conceivably contribute to a "theocracy." Indeed, it is incontrovertible that the appellant in Masterpiece Cakeshop honors the very Golden Rule you cite, Trevor, which are the words of Christ, Who sought no "theocracy."

What are you talking about, Trevor? (That's a rhetorical question. Yours was not really a "comment" but, rather, mere snide ad hominem, which is your way.)

"Beware of false prophets, which come to you in sheep's clothing, but inwardly they are ravening wolves." Matthew 7:15.

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Image of timothy
on December 09, 2017 at 11:00:54 am

Absurd. Government is supposed to safeguard the interests of the people as a whole (e.g., in clean air and water).

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Trevor Chase
on December 09, 2017 at 14:05:52 pm

goodness gracious - you ARE prone to exaggeration, are you not. A certain rhetorical flare, a little editorial license - OK; but you do go on Dear Dawg as if every attempt to 'temper" the interventions of the State is to be deemed as a direct assault upon its' very foundations.

"Art is a lie intended to illumine the truth" - Picasso.

Careful, that we do not forget to confine our art!!!!!

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Image of gabe
on December 09, 2017 at 15:40:52 pm

" Government is supposed to safeguard the interests of the people as a whole (e.g., in clean air and water)."

Trevor, from what orifice did that notion emerge?
It's certainly not a doctrine to be found in the intellectual or empirical patron-sources of American law: not the Declaration, the Founders' writings, the Constitution (it's not even implied in the Ninth Amendment;) nor in natural law or the Roman republic; nor the common law, the Scottish Enlightenment or classical liberalism. Montesquieu, Fortescue, Coke, Blackstone, Burke, Adams, Hamilton, Madison, Marshall, Kent and Story never ever said it to my knowledge.

I think its dubious intellectual origins are from Germany and came here during the gilded age of American Progressivism (in the hold of a rat-infested cargo ship?) when (alas) American social problems were first addressed by a meretricious gold gilding of political hubris, government pretension and bureaucratic intrusion. I think your notion's first serious American political exponents were TR, Woodrow Wilson and FDR, none of whom really believed it if we are to judge them by their records.

Today, of course, your notion is merely Obamaesque, a platitude commonplace among political mountebanks (like the Clintons) who say nothing of meaning and mean nothing they say.

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on December 09, 2017 at 21:33:01 pm

I fail to see how supplying any service at all to a same-sex wedding is not an expression of moral sanction for the proceedings. I say that only because same-sex legal marriage remains controversial, and everyone knows damn well it remains controversial. When I announced on FB my marriage to Walter a couple of years ago, my relatives religiously opposed to such a legal power for us did NOT come on saying 'best wishes' or 'congratulation'. They were silent. That was their will in the matter, regardless of any fondness they fancy they had for us, blanking out the circumstance that my relationship with Walter is core to my person. To compel such people to provide ANY sort of service towards making a gay marriage, or towards any sort of service at all to gay couples would indeed be a compulsion against their will by their lights of morality (vicious and self-puffing though it be in this division of it). // We don't have laws or ordinances here in (our part of) Virginia compelling equal commercial treatment of gay, lesbian, or transgendered persons. We got our wedding cake made right here in Lynchburg, home of the homophobic crusade called Liberty University. If Mr. Phillips should lose this case, we welcome him to move here to Lynchburg and taste a little more freedom. // That is one of the reasons my first life-partner and I in 1972 moved from our birthplace Oklahoma to Illinois, because in the latter by that time we were not criminalized for our gay relationship.

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Stephen Boydstun
on December 10, 2017 at 16:36:22 pm

[…] but I think it is realistic to consider this possibility. I know some commentators have taken the opposite opinion , but I think they are in error to assume the baker will […]

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Image of Predicting Kennedy in Masterpiece Cakeshop | Publius in Exile
Predicting Kennedy in Masterpiece Cakeshop | Publius in Exile

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.