The Expressive Society and Masterpiece Cakeshop

Until my own wedding five years ago, I had never recognized how many modern craftsmen and craftswomen considered themselves artistes. Our wedding photographer labored over angles, like a film director, to make the pictures a joint production of our day and her style.  And even the wedding cake maker in our interview with her said she wanted to capture our “spirit” as a couple in her design.  I reflected then that in a wealthy society even many people who make material things think they are ultimately are in the business of creating meaning, where they mix their expressiveness with  their clients to make art in the workaday world.

Our expressive age provides the social context for the Masterpiece Cakeshop, in which a cake baker couple is challenging an antidiscrimination law that requires them to bake a cake for a same-sex wedding ceremony. Mark Movsesian has written an excellent post, in which he is doubtful about the success of such claims because they run afoul of the egalitarianism of American society–a feature first noted by Alexis de Toqueville. But America is also dedicated to free expression. And just as egalitarianism has increased over time to embrace the equality of same-sex and traditional marriage, so has the breadth of expressive activity.   Thus, the First Amendment question in Masterpiece Cakeshop sets up a clash of two powerful currents coursing through America–equality and expression.  And to make the clash even more striking, Justice Anthony Kennedy, often the swing vote on the Court, is both the creator of constitutional rights for same-sex couples and the most stalwart defender of free speech.

Justice Kennedy would likely find this an easy case, if the bakers had been asked to write something or place a symbol in their design that celebrates same-sex marriage. It is clear from many cases that citizens cannot be forced to deliver a message that does not reflect their own sentiments. The argument that there is no constitutional violation because the speech would be attributed to couple getting married rather than to the bakers is inconsistent with Supreme Court case law, including the famous case where a New Hampshire resident successfully challenged being forced to display the slogan Live Free or Die written on the state’s license plate. One cannot be forced to disseminate opinions with which one disagrees.

But apparently the bakers in Masterpiece Cakeshop had not yet discussed the design of the cake before saying that they would not sell one of their signature cakes for the same-sex wedding. Should that make a difference? This is  a difficult question, but it is not yet clear to me it should. A videographer of a wedding would make decisions, large and small, to put the ceremony in the most favorable light.  The nature of her profession would be to express the beauty of the celebration, but  such  expression is inconsistent with the view that same-sex marriage is immoral.   How different is the action of a cake maker who consciously designs a cake with a particular couple in my mind, as did the baker at my own wedding?  Of course, if a wedding couple wanted to buy a cake off the shelf, there would be no merging of the expressions of the baker and the couple. But as I understand the facts of the case, the bakers were perfectly happy to sell their baked goods to anyone, just not to  design a cake for a particular couple on occasion of  moral significance. In a society suffused with expressiveness, the First Amendment protects free speech rights of craftspeople as well as journalists and academics.  Masterpiece Cakeshop will work out how it does so.

Reader Discussion

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on July 17, 2017 at 15:20:39 pm

1. HEY-- I linked to Movsesian's article first!

2. Yes, to the extent a worker is [regards herself as?] an artist, then her work is arguably a kind of speech, and arguably warrants free speech protection.

3. But are we just being classist? Heck, even SpongeBob Square Pants regarded himself as a conceptual artist, although to any observe he was a fry cook. And there’s that scene in the film As Good As It Gets when the manager of a diner throws out a famous, but loutish, author—much to the applause of the other patrons and staff. Surely that also was an act of speech. Should it also be entitled to free speech protection?

Would it matter if we added in the fact that the author is autistic and suffers from obsessive compulsive disorder, and thus the expulsion may have violated the Americans with Disabilities Act?

Ok, what if say that the author wasn’t being loutish, just black—and the manager and patrons just happened to be racist. The expulsion is still an act of speech. Should the actor still be entitled to free speech protections?

Likewise, what if the baker refuses to bake for black people as an expression of her racist views. Heck, let’s say she’s a member of the Christian Identity Movement, just to add a Free Exercise claim. Still protected speech/conduct?

And what about the janitors and the wedding location—shouldn’t they get to engage in expressive conduct by withholding their services, too? The people selling paper plates for the wedding reception? The electric utility serving the building?

Bottom line: There’s a trade-off between freedom and equality. Civil rights laws advance equality, but at the expense of freedom. What’s the best place to draw the line? Hard to say—but wherever you do it, you’ll have to sacrifice some freedom, or some equality, or some of both.

4. In case I haven’t mentioned it today, I’ve developed a proposal for drawing the line: the Market Power Affirmative Defense. It doesn’t require drawing difficult distinctions between proper and improper motivation, or between speech and non-speech commercial activity. Rather, it requires distinguishing between housing/employment/public accommodations for which there are comparable substitutes readily available, and housing/employment/public accommodation for which the substitutes are not readily available. And the discriminator bears the burden; what could be easier?

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on July 17, 2017 at 21:20:41 pm

I guess "We are all *artistes* now." No doubt this stems from the 'self-esteem" movement in public schools and modern parenting.
It is amazing what one can do with a bakers knife, not to mention what one can do with a surgeons knife which can apparently transform a former olympic decathalon champion into a (somewhat less than) stunning damsel.

On a serious note, McGinnis hints at something deeper in the modern American psyche - this belief that we all have something of immeasurable importance to *express.* We see this in the ranting and ravings of numerous undergrads, absolutely obscure and meaningless scholastic papers emanating from Gender / Race / Class Studies Departments, etc.

Goodness, it has even affected Sportcasters who drone on with meaningless statistics - all to the detriment of the fans enjoyment of the game.

Hey, I am a fan. Let me OBSERVE without all this expressive wonderment.

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on July 19, 2017 at 03:38:49 am

If clothing is expressive--that's why school uniforms are banned in public and private schools (Cohen v. California)--then surely physical design is expressive (whether it's a cake, a sculpture, etc.)?

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