Sunday, September 17, 2017

Why the Court Can't Decide Masterpiece Bakery

By Eric Segall

If you are reading this Blog, you probably know that this Fall the Supreme Court will hear a case brought by Tom Phillipsco-owner of Masterpiece Bakeshop, who refused to bake a cake for a same-sex wedding. Colorado law prohibits businesses from refusing to cater to customers because of their sexual orientation. Phillips argues that both the free speech and free exercise clauses of the First Amendment prohibit Colorado from punishing him for his refusal. Last week, I wrote a piece for SCOTUSBlog arguing that his free exercise claims should be dismissed but conceding that his free speech claims are truly difficult. It turns out, however, that those speech claims cannot be satisfactorily resolved on the present record, and therefore the Court should not resolve Phillips' speech claims.

Let’s all agree (or at least assume) that the state of Colorado could not force a wedding singer to perform a particular song requested by a customer because doing so would obviously violate the singer's first amendment rights (same with a poet or a painter). Let’s also agree that Colorado could (without regard to freedom of speech) forbid an air conditioning company from refusing to fix an AC unit at a hall where a same-sex wedding is taking place simply because the owner of the company objects to same-sex weddings. The reason is that fixing air conditioners simply isn’t speech. The hard question in Masterpiece is where does a wedding cake fall in that spectrum for free speech purposes.

I think it is clear that the state cannot force Phillips to write a pro-same-sex-marriage message on the cake or even design it in a way to communicate that message (the couple's actual cake eventually was decorated with a rainbow which is a symbol of the gay rights movement). That would be the same as making a singer perform a song against her will. Although it is not frivolous to argue that the state's compelling interest in fighting discrimination might justify that compelled expression in the context of commercial services, I think that it is a tough argument when there are many other vendors willing to provide the same service.

On the other hand, the first amendment should not block Colorado from requiring Phillips to sell candles, napkins, or off-the-shelf generic food products just because he has a religious objection to same-sex weddings. That kind of exception would blow a huge hole through non-discrimination laws and would allow business owners who sell items with no expressive component to refuse service to people on the basis of their race, gender, religion or sexual orientation. As many have argued, the provider of napkins or appetizers to weddings does not send a message of approval of that wedding. 

So, where does Phillips' refusal fit in? Unfortunately, it appears the record does not supply the answer and the Court should not make one up. Here's is what the administrative law judge found:
6. Phillips informed Complainants that he does not create wedding cakes for same-sex weddings. Phillips told the men, “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.” 
7. Complainants immediately got up and left the store without further discussion with Phillips.
 8. The whole conversation between Phillips and Complainants was very brief, with no discussion between the parties about what the cake would look like. 
9. The next day, Ms. Munn called Masterpiece Cakeshop and spoke with Phillips. Phillips advised Ms. Munn that he does not create wedding cakes for same-sex weddings because of his religious beliefs, and because Colorado does not recognize same-sex marriages.
It appears that there was never a conversation about the possibility of a generic wedding cake. The Colorado decision that Phillips appealed said that, after the couple asked Phillips if he would make them a cake, "Phillips declined, telling them that he does not create wedding cakes for same-sex weddings because of his religious beliefs, but advising [them] that he would be happy to make and sell them any other baked goods." And, in his brief in the Supreme Court, Phillips says that he "politely explained that he does not design wedding cakes for same-sex marriages, but emphasized that he was happy to make other items for them." It is not clear from the record whether the "other items" refers to other wedding items or baked goods for other occasions. 

There are two major unanswered questions directly relevant to Phillips' free speech claims. First, if he were able to make the couple a generic cake, but refused, that would likely render him liable under the Colorado civil rights law without first amendment protection. A bare chocolate cake with no writing or special design does not communicate a message. But if the couple insisted on a cake with a message supportive of same-sex marriage, Phillips should probably prevail under the forced expression doctrine of the first amendment (unless the law satisfied strict scrutiny).

The other factual issue that is unresolved is whether Phillips would have provided generic baked goods (i.e.,cupcakes) to the wedding or whether he was saying he could provide nothing to them of use for the wedding. Again, it is hard to see why the first amendment free speech clause would prohibit Colorado from making it illegal for a vendor to refuse to provide non-expressive commercial goods to same-sex weddings. But there apparently was no conversation about other goods for the wedding so again we don't know the answer to that question.

It may well be that all of Phillips' wedding cakes are custom-made, though that is also not clear from the record. But if Phillips had refused to bake even a plain vanilla cake, with no symbol or expression, then it also is clear that he would refuse to sell them anything for their wedding, even a clearly generic, non-communicative cupcake. As explained above, the legal consequences differ depending on whether Phillips was saying he would not provide the couple anything expressive or whether he was saying he would not provide them anything at all. 

The Court could possibly find that all wedding cakes, no matter how plain, communicate support for the wedding for which it it provided. But let's be honest, that is just ridiculous. Therefore, the speech claims in this case turn on exactly what Phillips was willing or not willing to do. And, the Supreme Court of the United States is not the place to answer that question in the first instance. Because, as I explain here, Phillips should not win on his religion claims, the Court should either remand the case for further fact finding, or even better, decide that it should never have decided to hear the case in the first place.


Joe said...

SCOTUSBlog has various briefs etc. for this case and one thing I noticed was different briefs phrase the question presented in notably different ways. There should be a policy where you simply cite the official question presented.

The idea that the couple was assumed to have asked for a special "created" cake does appear to be important to the bakery and U.S. briefs. If the cake is possibly just generic, the claim expands, and the more specific claim very well might deserve to as they say be "DIGGED." Dismissed as improvidentially granted.

Shag from Brookline said...

What if the couple had sent a man and a woman to Masterpiece to order a wedding cake for a "traditional" opposite sex marriage, including groom/bride figurines, with loving content that in no way suggested it was for a SSM. After Masterpiece provided the cake, the couple removed the bride and substituted another groom. Later, Masterpiece discovered this and was upset for reasons of religion and interference with what Masterpiece considered speech (or copyright?) rights. Assuming the cake could be considered artful, would Masterpiece have a claim against the couple and/or the man and woman who arranged for the cake?

Could a majority "DIG" the case? If so, I doubt the 4 Justices who granted cert would "dig" it.

Asher Steinberg said...

This is a great post, Professor Segall. Your questions are questions I've had.

Asher Steinberg said...

Could you address, though, your views on the case of the wedding singer who is hired to write a song of his own creation, wedding-themed of course, to honor the wedding? What about a wedding poet who is hired to write a wedding-themed poem, the specifics of which are of his choosing, that someone besides the poet will read? These seem a bit more closer to this case, though some people want to fight the expressive functions of cake altogether.

Diane Klein said...

Though it's not clear from the record (so your procedural point is of course well taken), it is clear from other material that he is a custom wedding cake baker. The issue, however, is that his argument seems to be that making a cake for them, traceable to him in any way, would be compelled impermissible speech. It wouldn't matter if the cake had nothing but hearts and flowers - because those very hearts and flowers, in THIS context, would amount to his endorsement of THIS wedding - the thing he will not give. Why, exactly, he thinks OTHER custom baked goods served at a wedding (apparently the cupcake tower craze never reached Colorado) would NOT have this consequence, I don't know. As for the fraudulent cake-buyers - hard to say as to the 1st A. issue. But if what same-sex couples are subjected to, in a place of public accommodation (like a bakery) is having to send in fraudulent cake buyers, they are most assuredly not enjoying the equal protection of the law.

Eric Segall said...

Diane, the record is unclear whether he would have provided anything for the wedding. And that is certainly an important fact unless Court says all wedding cakes are expressive, which is ridiculous.

Thanks for the nice note Asher, I don't think Colorado can require a singer to sing or a poet to write. But I think it could require a deli to provide cold cuts.....

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Asher Steinberg said...

I have to say something nice once in a while about the colleague of my brilliant second cousin once removed, who like me is descended from a long line of deli men. I agree, speaking from ancestral experience, that cold cuts are not expressive, even when they come on those nicely arranged plates some delis make. But I don't know that I agree that generic wedding cakes are non-expressive. Why do couples who can't afford elaborate cakes buy generic wedding cakes? To offer their guests an after-dinner dessert? Are cakes even that good? (I don't know; I've never tried one.) Why not, if you can't get an elaborate cake, a good pie (also never tried one) or a large fruit tart (same)? The fact that we would even call the generic cake a wedding cake, while no one would ever refer to the food they ate at a wedding as "wedding salmon" or "wedding steak" or "wedding fruit tart," suggests that any cake, at a wedding, is serving some function of symbolizing matrimony.

That said, I think that Professor Klein is right and that generic cakes just aren't a thing the petitioner sells. There is also, in any case, a large middle ground you don't address in your post between generic cakes and cakes "with a message supportive of same-sex marriage." I think a wedding-themed cake, even if only an abstractly wedding-themed cake in the sense that the colors and design are meant to evoke a wedding, is supportive of the particular marriage it's used to celebrate, even if it doesn't mention the names of the people in icing or have a figurine of the two grooms on top.

I also would not readily concede that Colorado could not forbid wedding speechwriters or wedding poets from discriminating in who they sell their poems and speeches to, especially if the poems and speeches will be read by others and their role will be anonymous. That feels fairly close to this case. One attractive way to resolve this case, for me, is to say that making people sell an expressive product they manufacture to others who will use it as expression of their own just isn't so bad, or so different from making people sell non-expressive products to buyers who will do things with the products the sellers don't like. This is an argument that speech isn't that special, or not so special that we want to distinguish cakes or ghostwritten wedding toasts from people who don't want to sell custom beds to gay couples.

Joe said...

I don't think Colorado can require a singer to sing or a poet to write.

Let's say I run a for profit business where I provide a service where I sing one of five songs, customer's choice, like Happy Birthday or God Bless America.

I can decide not to sing for black customers and Colorado couldn't stop me?

Greg said...

While I completely agree with Prof. Segall that it appears that Masterpiece Bakery seems to be improvidently granted with regard to the speech issue, it's interesting to me that people find this one a hard call. We had another case that actually DID raise the speech issue, Elaine Photography, and pretty much everyone I talked to, both in person and online, thought that one was an easy call against the photographer.

As an amateur photographer myself, I always felt Elaine Photography was an incredibly difficult case, because the same speech issues that people claim Masterpiece Bakery raises (but that the record doesn't support) are also difficult when applied to photography.

Is there something I'm missing about cake baking for hire that raises speech issues in ways that photography for hire doesn't?

Personally, I've felt that the conventional wisdom got these cases backwards. Masterpiece Bakery is an obvious equal protection case, where the bakery refused service without establishing if the content of that service required speech that the baker could not accept. In the case of Elaine photography, it was a much tougher call because any photographs that the customer would find acceptable would have to show the wedding in a positive way that would be against the photographer's beliefs.

To my mind, the Supreme Court got these cases backwards. They should have granted Elaine Photography and passed on Masterpiece Bakery.

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Shag from Brookline said...

I am imagining from my early youth (1930s) here in the Boston area a current day SSM featuring Berwick's then-famous (and delicious) Whoopie Pie serving as a wedding cake with each groom sitting on a whoopie cushion and an Eddie Cantor impersonator singing "Making Whoopee" on Constitution Day.

Joe said...

Elane Photography v. Willock was denied cert. in April 2014.

Obergefell v. Hodges was decided in June 2015.

At the time, Colorado didn't recognize SSM but it would have been interesting if they took the case at the time. The timing of cert. clearly factored in here. And, even after SSM was decided, the Supreme Court took a long time to get around to granting cert. here, dragging things out.

Volokh Conspiracy was the place to go if you wanted to read people who saw Elane Photography a hard case.