By Eric Segall
Next Tuesday, the Supreme Court will hear the case of the Colorado baker who refuses to allow his products to be used in same-sex wedding ceremonies or celebrations. Colorado courts found that his refusal violated a state law prohibiting vendors from discriminating on the basis of sexual orientation. The baker, Jack Phillips, claims that the Colorado law, as applied to him, violates the First Amendment’s speech and religion clauses. This collision between anti-discrimination laws protecting gays and lesbians on the one hand and opponents of same-sex marriage on religious and free speech grounds on the other hand is the latest battle in the national culture wars.
Justices Gorsuch and Thomas both claim to be committed originalists. Since it is likely the four liberals on the Court will rule in favor of Colorado, one more vote for the State should result in its victory. How should a committed originalist decide this case?
To discuss the question, we first must define what it means to be a “committed originalist.” These days, that it is no easy feat. But it is likely that most originalists would agree with the following three propositions: 1) the meaning of the constitutional text is fixed at the time of ratification; 2) judges should give that meaning a primary role in constitutional interpretation; and 3) pragmatic modern concerns and consequences are not allowed to trump discoverable original meaning (although adhering to precedent might).
Phillips argues that Colorado’s non-discrimination law as applied to him violates the First Amendment by abridging his right to free speech and his right to the free exercise of religion. To resolve those claims a committed originalist would want to know what the words of the First Amendment meant either in 1791 when it was ratified, or in 1868, when the Fourteenth Amendment was ratified (because according to later Supreme Court cases, the Fourteenth Amendment incorporated the First Amendment against the states, as the First Amendment itself only mentions Congress).
The State of Colorado is not stopping Phillips from saying anything he wants at any time or in any place on any topic. He is completely free to protest against same-sex marriage as loudly and as often as he pleases. Additionally, according to the facts, Phillips was never asked to place any message on the cake (he told the plaintiffs he could not provide any cake for their wedding party, and they left the store immediately afterwards). Instead, Phillips’ argument is that the state is forcing him to express himself against his will because the act of making a cake, even a generic one, for a wedding celebration forces him to express support for that wedding.
There is no plausible argument that the original public meaning of the word “speech” in 1787 or 1868 would have included the selling of a generic wedding cake with no message on it. Although it is possible, as Eugene Volokh has argued, that the founding fathers might have found certain expressive conduct to be protected by the First Amendment, selling baked goods is not expressive conduct unless there is an actual message on the goods. Selling a generic cake is no more expressive than selling dinner rolls or corn chowder, and no one that I have read is suggesting the founding fathers would have thought otherwise, even if symbolic and verbal expression were both protected “speech.”
The original public meaning of the First Amendment was probably best summarized by James Madison, whom Volokh quotes in his article: “The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments.” Phillips is not being denied the right to do any of those things by a state law prohibiting him from discriminating against customers on the basis of sexual orientation.
There are Supreme Court cases that have held that the government may not compel people to express a message with which they disagree even if they are allowed to protest that message at other times and in other places. Under this “compelled speech” doctrine, the Court has struck down a state statute requiring students to recite the pledge of allegiance, a law requiring the sponsors of a parade to allow pro-gay rights marchers to participate in the parade, and a law requiring residents of New Hampshire to have license plates with the motto “live free or die.” It is highly questionable whether these cases are consistent with the First Amendment’s original meaning, and none of them used originalist analysis to decipher the First Amendment (though the cases may well be justifiable on non-originalist grounds).
Nevertheless, most originalists do concede that sometimes originalism must give way to precedent. But all of the aforementioned cases involve a fact that is not present in Masterpiece Cakeshop. The plaintiffs in those cases were all forced to communicate or accept a message against their will. A generic wedding cake with no symbols or letters simply is not expressive, and it would take a large leap from the non-originalist cases cited above to include non-expressive behavior as protected speech. A committed originalist might accept non-originalist precedent that is on-point, but he certainly shouldn’t extend those prior cases unnecessarily.
As far as Phillips’ free exercise of religion claims are concerned, Colorado has no state religious freedom restoration act, and the Supreme Court held in Employment Division v. Smith that the free exercise clause is not violated by generally applicable laws not intended to discriminate on the basis of religion. There is no plausible argument that Colorado’s non-discrimination law fails that test. The Smith opinion, written by Justice Scalia, has been criticized by some originalists. However, the better argument is that there is little or no evidence that such exemptions were constitutionally required as a matter of constitutional law, though legislatively granted exemptions are consistent with the Constitution's original meaning.
Phillips claims, as does an amicus brief filed by Professors Douglas Laycock and Thomas Berg, that as applied the Colorado law discriminates on the basis of religion because bakers in Colorado have been allowed to refuse to place anti-same-sex marriage messages on wedding cakes. This factual argument is simply not supported by the record. Colorado has conceded that this case would be different if the plaintiffs had asked Phillips to put a message on the cake. They never did. Therefore, other examples of the application of the law to explicit requests for messages are irrelevant, and do not show religious discrimination.
Finally, in case one is tempted to think that, as an original matter, requiring merchants to serve customers against their will violates their constitutional right to do business or not with whomever they see fit (an argument not made by Phillips), one need look no further than the Supreme Court’s unanimous decision in the Massachusetts parade case. There, Justice Souter observed that public accommodations laws haveAs a matter of the Constitution's original meaning, Colorado is not prevented from requiring those who sell their goods to the public to refrain from discriminating against potential customers on the basis of sexual orientation unless those vendors are being asked to participate in expressive activity (and under the modern case law even then Colorado can win if it has a compelling interest in fighting discrimination against gays and lesbians and has used the least restrictive means to further that interest). There is no persuasive argument that the original public meaning of "speech" would have applied to a generic wedding cake with no message. Will that prevent the Supreme Court from ruling in Phillips’ favor? Of course not. But a committed originalist should rule for the State of Colorado.
a venerable history. At common law, innkeepers, smiths, and others who ‘made profession of a public employment’ were prohibited from refusing, without good reason, to serve a customer….As one of the 19th century English judges put it, the rule was that ‘[t]he innkeeper is not to select his guests[;] [h]e has no right to say to one, you shall come into my inn, and to another you shall not, as everyone coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants.’