Tuesday, November 28, 2017

How Should a Committed Originalist Decide Masterpiece Cakeshop?

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 have
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.’
           As 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.


Joe said...
This comment has been removed by the author.
Joe said...

One person online me and someone else here engages with sometimes appeals to originalism but is upset about forcing service; sees it as a 13A problem. Repeatedly noted that historically, it was not seen that way. Doesn't seem to care.

I'll let others play this sort of role playing game but would simply note that (as seen by one or maybe both concurring opinions) in the pledge case that it might have been an "originalist" result [again, the term is so variable, fwiw] as a sort of "test oath" ruling. The argument is probably easier now with "under God" in there.

Shag from Brookline said...

Back in the late 1930s, my family moved from Somerville to Roxbury, part of the City of Boston. I soon became aware of the Berwick Bakery located in Roxbury and of its fabulous Whoopie Pies; we kids used to get 2 "day olds" at the Bakery's outlet store for a nickel. I was a pre-teen back then and my understanding of "Whoopie" was not the same as what I later learned about the popular song "Making Whoopie." Berwick's sold Whoopie Pies to local stores and there were no restrictions on who could buy them, as long as they had a nickel. No expressive conduct seemed to be involved, unless one might make a feeble connection to "Whoopie Cushions" which I was aware of back then. But we kids didn't think of speech rights as we devoured our Whoopie Pies. But after we did, we talked about how great it tasted and talked about saving up a nickel for another one in a few days. [Note: The Great Depression was still on.]

Alas, Berwicks went the way of many bakery businesses. Every once in a while, STAR Market and Whole Foods offer their versions of Whoopie Pies, passable, but not really great like Berwicks. And there are many variations with the current day versions.

kaminshine said...

Eric really persuasive piece, yet we know, don’t we that Thomas for one, will rule for the cake mker. How ’do you think he will make that case.
I want to play devils advocafe on one point you make several times: a cake w/o symbols or letters cannot be expressive speech because it carries no message. Might it be seen as carrying the celebratory message of marriage. Wedding cakes typically are distinctive in that regard. At least might I it be seen to carry the implicit celebratory message of the occasion. If so, can the cake maker now object to selling a cake whose essence
celebrates marriage, a message to which he objects as applied to same sex weddings.;

John Barron said...

Scalia put this one to bed 30 years ago, in Employment Div. v. Smith. The 1Am right to free exercise cannot be absolute, as it could potentially create a religious veto over every law we have.

This just isn't a constitutional case. This is about whether the RFRA trumps facially valid legislation under the state's commerce clause. That would depend on the text of the RFRA, and I'll leave that analysis to someone who cares.

ES: "most originalists do concede that sometimes originalism must give way to precedent."

Absurd. As a general rule, if "precedent" can't be squared with COTUS or the controlling statute, it should not be followed, as lawmaking is outside of the scope of the judicial power. (There is plenty of flexibility here.)

Example: ES has conceded that Plessy can't be squared with the text. As such, no true oricinalist would have been in the Plessy majority. Plessy was pure LC, where "law" is nothing more than politics. ES should have been as happy with it as a hog in slop.

The parties argue 1Am because even Thomas is a Burkean, and under the LC, law is merely politics. You have no rights--just a tenancy-at-will in mere liberties.

Shag from Brookline said...

Off topic: John Barron, your 5:43 AM comment on Neil's 11/16/17 post "What Would Frustrated Republicans Say on the Way Out?":

"Half of me is almost thinking that if Kim Jong-un hit Washington DC, he would be doing us a favor."

In the news yesterday, North Korea launched an intercontinental missile reportedly that could reach Washington, DC. What is your other half almost thinking now?

Joe said...

Then, later on, we had Mr. Whoopee on the Tennessee Tuxedo and His Tales cartoon.

Asher Steinberg said...

I don't think you're really saying anything about originalism as applied to this case. Your argument basically goes, "the original meaning of the First Amendment protected speech or expressive conduct, but this isn't expressive conduct, so an originalist will vote for Colorado." But even a non-originalist must vote for Colorado on the speech claim if he agrees with you that a wedding cake isn't speech or expressive conduct; on any plausible originalist or non-originalist account of the First Amendment, Colorado must win if cake isn't at least expressive. Of course, the whole case is (largely) about whether cake is expressive or not, and you don't have an argument for why it's not, besides dismissively comparing wedding cake to dinner rolls or corn chowder. (Are dinner rolls symbolic/celebratory of weddings, or anything else? Are there corn chowder artists? If generic wedding cake isn't expressive of anything, shouldn't it follow that the state could ban wedding cake in favor of some more healthful dessert? I find it a little hard to believe that banning such a traditional symbol of matrimony wouldn't pose a serious speech problem.) If an originalist votes against Colorado, it will be, of course, because he thinks and claims cake is expressive. So on your own premises (that the First Amendment protected speech and expressive conduct), that should suffice to make his vote consistent with originalism--unless you can show anything in particular about original understandings of what counted as expressive conduct, which you haven't attempted to do.

John Barron said...

That's not Kim's game -- he's just taking a page from the dictator's playbook: If you want to be free of American intimidation, get nukes and a way to deliver them. Unlike Trump, he behaves rationally.

But just for sake of argument....

The tax bill is conclusive proof that we are ruled by an oligarchy. And no, I don't appreciate being ruled by oligarchs.

The Republican Congress, all of the DC courts (incl. SCOTUS), and 250,000 lobbyists -- do you really think we'd miss them? Destruction of that infrastructure might actually restore republican democracy.

Let us just say that there are worse places a nuke could land.

Shag from Brookline said...

John, I share your views of the Trump/GOP tax "plan" but don't relish tax reform by Kim. Perhaps it's time for an old fashioned cinematic double feature:

"The Mouse that Roared"


"Dr. Strangelove"

for a reality check.

The oligarchy is quite heady at the moment. But surely they must realize the Madmax threat they might face if they get even greedier. Maybe we should add to this double feature:

"The Bonfire of the Vanities"

Over my long career, I attended most Federal Tax Institute of New England tax seminars for the long list of major tax bills that had been enacted. Even though I am basically retired, I would want to attend the Institute's seminar on the Trump/GOP tax "pan," if enacted, to test my declining memories of tax laws past, but also for what I would perceive as high comedy. Trump says the "plan" will be a Christmas gift for all Americans. That might tie in with Trump's campaign promise to make coal King again (not to be confused with Nat King Cole, of course) with lumps of coal in our XMAS stockings.

But seriously, no nukes is good nukes.

John Barron said...


As has always been the case, the winning move is not to play. And if he does fire one, the best result is that we shoot it down. But if he must hit something, it might as well be D.C.