Power, not justice, may well decide the fate of liberty in the new Canada.
Masterpiece Cakeshop v. Colorado Civil Rights Commission is a hard First Amendment case on which reasonable people can differ. It is clear that a baker could not be forced to write an icing message supporting a kind of marriage with which he disagrees. It seems also clear that a videographer could not be forced to take pictures of a ceremony with which he disagrees, because film is itself an expressive medium in which decisions about how to portray weddings would naturally convey a message about it. On the other hand, a rented room or indeed an ordinary cupcake that is supplied conveys no message.
The key question for Masterpiece Cakeshop is on what side of this line does a custom cake fall.
As discussed in a previous post, reasonable minds can and do differ, as they can on almost case where line drawing is required. What is less important than exactly where the line is drawn is that the Court recognize that one side of the line must recognize the free expression of artisans and artistes. And what is troubling is the large number of commentators who deny that lines need to be drawn, because of their priors that look a lot like prejudices.
Consider, first, Linda Greenhouse: “In my opinion, if someone wants to be able to pick and choose his customers, he should bake for his friends in his own kitchen and stop calling himself a business.” On her view, people in commerce lose all expressive rights, because on any sensible line, sometimes a baker will be able to refuse a customer because of what that customer insists must be included in the cake design.
Greenhouse’s prejudices against people in commerce are right out of the 19th century. There aristocrats and landed gentry looked down on people in trade, thinking that the way those with income earned from land gave them social superiority and a more capacious set of rights. Similarly, Greenhouse earns income as a journalist, and does not regard that as a low commercial activity, although it entirely depends on consumers buying media products. Nevertheless, she feels she should get a full panoply of First Amendment protections while mere artisans get none.
Another way of denying legitimacy to the claims of artisans with religious scruples is to subordinate their rights to one’s preferred social movement. That is the strategy of Douglas NeJaime and Reva Siegel in their analysis of the case. They claim that what is really at issue in Masterpiece Cakeshop is a wholesale attack on LGBT rights, although exactly the same doctrinal question could come up if a baker refused to bake a custom cake for the celebrations of divorce that are now in vogue in some sophisticated circles, or for any other celebration that he thought sinful. Indeed,they spend almost their whole article attacking the Alliance Defending Freedom’s position on LGBT Rights.
But theirs is the legal equivalent of an ad hominem attack to avoid a difficult case on the merits. Others, including the Solicitor General of the United States and serious scholars, like Douglas Laycock, supported the baker. They do not share the ADF’s general positions. Moreover, the idea that that this case threatens the advance of LGBT rights shows an almost willful ignorance of reality—a reality that social scientists quantify. Almost no movement has advanced as fast in the history of America. The support for equal rights for homosexuals among the young—the ruling generation to come—is almost universal.
The social as well as the legal question is in what fora and to what degree should the dissenters to the consensus be able to register their dissent. What is at stake here in analysis is whether the Court sustains a First Amendment that applies to different classes of society and to dissenters, even when they dissent from a majoritarian movement of which university elites strongly approve. Fortunately, however the Court rules on the specific facts of Masterpiece Cakeshop, few, if any justices, are likely to share the very wrong-headed perspectives of Ms. Greenhouse or these Yale law professors.