Tuesday, December 05, 2017

Three Problems With the SG's Klan Hypo in the Masterpiece Cakeshop Oral Argument

by Michael Dorf

During the oral argument in the Masterpiece Cakeshop case, Solicitor General Noel Francisco repeatedly used the following hypothetical example to make the point that a baker's creation of a custom cake (regardless of whether it contains an articulate message) is speech: Could the government "compel an African American sculptor to sculpt a cross for a Klan service?", the SG asked. And if not, doesn't that show that sculpting for a ceremony to which one objects--whether the medium is wood for a cross or dough for a cake and whether the ceremony is a wedding or a cross-burning--is expression to which the compelled speech doctrine applies?

The argument in the case was wide-ranging, with various outcomes possible. For at least some justices the case poses difficult line-drawing problems. But the SG's cross example does not do the work that he seems to think it does. Here I'll highlight three objections to it. One of them was offered during the oral argument itself by the lawyers opposing the baker, but went by quickly enough that it might not be sufficiently appreciated. The other two objections are my own contribution.

Objection 1: Ideology is not a forbidden ground in anti-discrimination law.

After a little cross-talk, attorney Frederick Yarger (arguing for Colorado) gave what should have been an obvious objection to SG Francisco's example: Colorado's anti-discrimination law does not forbid retailers from denying service to customers based on their ideology. Indeed, neither does anti-discrimination law generally. Thus, when the hypothetical African American sculptor refuses service to the Klan based on disagreement with the message of a Klan "ceremony," the sculptor does not violate the law and so there is no occasion for his free speech to be infringed.

Curiously, the Solicitor General didn't seem to realize this.

Neither did Justice Gorsuch, who later used a variation of the SG's cross example. He asked David Cole (arguing for the same-sex couple) to imagine a baker who bakes a cake with a red cross on it for an anniversary celebration for the Red Cross but not for the Klan. Justice Gorsuch chose this example because he was pushing back against Cole's suggestion that there would be no valid free speech objection if the baker or seller of other goods was willing to sell the same product to one customer but not another. The point Justice Gorsuch was trying to make with the example was that the speech content of the sale could differ based on the purpose for which the product will be used.

That's a fair point, but the example doesn't work for Justice Gorsuch anymore than it worked for SG Francisco, because Colorado's anti-discrimination law doesn't forbid retailers from discriminating against the Klan based on its ideology. So there's no conflict between the state law and free speech here. And just as Yarger pointed out the basic error when Francisco committed it, so Cole pointed it out when Justice Gorsuch committed it.

I say this error is curious, because it would have been relatively easy for either Francisco or Gorsuch to construct a better hypothetical. Indeed, Justice Breyer bailed his colleague out by modifying Gorsuch's hypothetical example so that it's not the Klan that wants the cross cake but someone who has a religious belief that overlaps with Klan ideology. Religious discrimination is forbidden by Colorado's anti-discrimination law, so in this variant there is a real conflict.

Alternatively, we could modify the Francisco/Gorsuch examples by considering a state public accommodations law that does forbid discrimination based on a customer's ideology or, more broadly still, that imposes the equivalent of common carrier obligations on merchants.

Because we can tweak the SG's and Justice Gorsuch's Klan examples to make them work better for the baker's argument, my objection 1 is to the rigor of their preparation, not to the substance of their position. Next, however, I want to come to two more fundamental objections.

Objection 2: The line between custom goods and off-the-shelf goods does not distinguish between speech and non-speech.

At the very beginning of the oral argument, attorney Kristen Waggoner, representing the bakers, conceded that her clients would not have a valid free speech objection to selling "a pre-made cake" off the shelf. Various justices who were sympathetic to her side in the case tried to take back this concession at various points in the argument by pointing out that they still might have an objection to compelled association with viewpoints with which they disagreed, but both she and SG Francisco seemed fairly committed to the distinction between custom goods and bespoke goods.

Their motive for wanting to draw the distinction is understandable: If merely selling off-the-shelf goods to a same-sex couple who wants to use those goods for a same-sex commitment ceremony triggers a valid free-speech claim, then there is no logical stopping point to the principle. The owner of a gas station could refuse service to the limousine taking a same-sex couple to their wedding on such grounds. Etc. Thus, it is perfectly understandable that Waggoner and Francisco were trying to cabin their proposed free-speech exception.

But here's the problem: The difference between custom goods and off-the-shelf goods doesn't have much if anything to do with the difference between expression and non-expression. Suppose that a same-sex couple came to Masterpiece Cakeshop on the day of their ceremony (because the cake they had purchased from a different vendor was accidentally destroyed, let's say). Suppose further that Masterpiece happened to have in the display case a cake that the couple wanted. According to Waggoner, it would be perfectly fine for the state to compel the cakeshop to sell that cake to the same-sex couple; there's no valid free speech objection. However, now suppose that instead of the display cake for that day, the couple wanted a cake identical to the display cake for a ceremony two weeks later. Now Waggoner says that the bakers' free speech is implicated.

The argument of Waggoner and the SG in support is that baking a high-end wedding cake is the creation of a work of art, i.e., constitutionally protected expression. When the state tells the cakeshop that it must sell the cake already on the shelf the state does not compel expression. The act of selling is not expression. However, according to this argument, if the baker has to bake a new cake, that's now creation of a work of art, i.e., constitutionally protected expression.

Does that make any sense? It might make sense if, at the time that the baker made the cake now on the shelf he had one set of beliefs that were expressed by the baking of that cake but he has since changed his beliefs so that now baking an identical cake expresses views he does not hold. But that's plainly untrue. The baker would be perfectly happy to bake a new identical cake for an opposite-sex couple's wedding. That tells us that--even assuming that there is some sort of protected expression involved in the baking of a high-end wedding cake--there is nothing about the act of creating the cake that expresses a message inconsistent with the baker's beliefs. The only thing that makes the creation of a new cake objectionable to the baker is the fact that it will be used for a same-sex commitment ceremony. But that's true of the off-the-shelf cake too, and yet Waggoner conceded that the baker could be legally obligated to sell that one without any infringement on the baker's free speech.

So the difference between custom and off-the-shelf cakes doesn't do any of the work that Waggoner and SG Francisco seem to think it does.

Objection 3: The example proves too much

In any event, even though SG Francisco endorsed the distinction between custom goods and off-the-shelf goods (in answering a question from Justice Kennedy about whether the baker could put a sign in his window saying he does not bake cakes for gay weddings), his example does not actually rely on the distinction. Recall that the Solicitor General thinks that an African American sculptor should be able to refuse to sculpt a cross for a Klan ceremony (presumably a cross-burning). The power of this example, such as it is, doesn't seem to have anything to do with the fact that sculpting is an art form or that the cross is custom made.

Suppose that the sculptor happened to have already sculpted a cross and had it for sale in his shop. Wouldn't he be equally horrified when the Klansmen came into the shop to purchase it for their cross-burning? Or suppose that a group of klansmen came into a linen store owned by an African American merchant. The klansmen want to purchase thirty white sheets to use at their next rally. Isn't the merchant's objection to selling them those sheets just as powerful as the objection of the sculptor in the SG's hypothetical example?

In each case, the real objection of the merchant is that he does not want to be implicated in the hateful message of the Klan. That's an objection worth vindicating, but as noted above, one can vindicate it without any necessary implications for the Masterpiece Cakeshop case, because anti-discrimination law doesn't protect the Klan. At least not yet.


Greg said...

Aren't objection 2 and objection 3 really two sides to the same objection (at least as applied to the Klan hypothetical), or am I missing some subtlety here?

Josh said...

Colorado does not, but California does prohibit discrimination on the basis of "political activities or affiliations." https://law.justia.com/codes/california/2005/lab/1101-1106.html

egarber said...

Thanks for the post.

A few follow ups (forgive my tediousness):

1. Would a law that bans discrimination against ideology likely be invalid on its face, because it would result in more-than-incidental compelled speech? And if so, is that sort of the crux of this – i.e., the baker is treating Colorado’s law as if it were ideological, when it reality it’s about protected classes of PEOPLE?

2. Even though as you say, the off-the-shelf / custom distinction in itself doesn’t seem to be a logical trigger for defining “expression,” what about this hypothetical?

a. The baker abides by the law and agrees to custom bake a cake for a gay couple. The couple insists that it say something like, “gay marriage is the only marriage that matters!!!”

b. I’m thinking something else has happened here, in that we’ve crossed the line from mere “forced association” into actual expression, and that the baker isn’t required to comply.

c. But the point of this exercise is that the baker would give ANYBODY that response – i.e., his negative reaction is to a forced expression, not the PEOPLE at the door. So in theory, allowing the baker to walk away here isn’t discrimination. The key is that the dynamic has transitioned from association (doing business) to specific expression (speech).

3. Though the baker’s legal team meant for the off-the-shelf / custom distinction to establish a limiting principle, isn’t even that rule still in effect unlimited on two dimensions? 1) it wouldn’t be limited to just bakers (think interior decorators, architects, whatever else), and 2) it wouldn’t be limited to gay people (think any minority). So all it really would do is carve out a pretty big space where people would be allowed to discriminate. In other words, even with the shelf / custom distinction, PEOPLE with innate characteristics will be turned away at the door in a significant way.

egarber said...

Also, did anything come up today about the FAIR case, or compelled speech when say, a doctor is required to tell women about alternatives to abortion? .... that stuff you have in your brief.

Joseph said...


1. I understood the use of the KKK hypothetical as a forceful suggestion that there is a speech interest at stake, which is the question before the Court. As you observe, Justice Gorsuch didn't bring up the hypothetical to address the discrimination or the religious aspect, but rather the speech interest. It boils down to the question: would being forced to make a cake for the KKK count as compelled speech?

2. I understood the retail versus made-to-order distinction to concern compelled versus non-compelled speech. The argument is that being made to sell a thing you created, assuming it to be an act of speech, is different from being made to create it. You are right that there is some inconsistency here. If we were talking about original poetry written by hand and the poet was required to sell to anyone willing to buy, is that limited to the poems already written and sitting on the shelves or could he also me made to create copies? Maybe he is compelled, but if he isn't there is an inconsistency that may just be part of the compromise of law.

3. The constraints of precedent motivated the free speech approach. I don't know that it's a very good argument. I also found today's oral argument lacking. You're right, in your examples, that the "real objection of the merchant is that he does not want to be implicated in the hateful message." And yet, does the selling of sheets "implicate one in a message"? Is a religious objection distinguishable from the kind of harm of a person selling sheets to KKK members? Given Smith, I don't see how the Justices get to a religious freedom ruling here.

Shag from Brookline said...

Yes, it's difficult drawing a line. But I think of Seinfeld's "Soup Nazi" and his "No soup for you!" retort to Elaine. Any line drawing in this case may surely result in subsequent efforts to redraw the line as the 1st A is employed creatively in attempts to deny the Other. It took a long, long time to overcome/diminish Jim Crow. This is another effort to deny the Other. Might line drawing lead to neo-jim Crow?

Shag from Brookline said...

The Take Care Blog this morning features:

"What Masterpiece Cakeshop is Really About" by Douglas NeJaime and Reva Siegel

focusing upon the goals of the organization defending the baker (not addressing oral arguments yesterday).

egarber said...

Reading up on the oral arguments, a couple of points (excerpts from NY Times):

1. When the baker's lawyer apparently made a distinction between baking and cooking, Kagan's response was almost funny:

Excerpt: Justice Kagan appeared incredulous. “Whoa,” she said. “The baker is engaged in speech, but the chef is not engaged in speech?”

2. Apparently, Kennedy is open to the idea that the people aren't the focus - it's the ceremony:


Instead, Justice Kennedy seemed to embrace a distinction pressed by Mr. Phillips’s lawyers — that Mr. Phillips has nothing against gay people but objected to same-sex marriage because it was at odds with his religious beliefs.

“It’s not their identity,” Justice Kennedy told Mr. Cole. “It’s what they’re doing.”

Me: So an obvious follow up is whether the baker would bake a CUSTOM cake for the gay couple outside the context of a wedding. Did that question get asked? But that seems weird to me - because again, it means he could deny service to an inter-racial couple for the same reason. There has to be a point where activities and identity are fused; otherwise pretextual justification could flood everything.

egarber said...

A follow up to my previous comment could be:

So what if the event was say, a gay pride parade?

That makes me think that there's yet another dimension in all of this - i.e., when does an activity become ideological vs tied to the individual in the normal course of living? So the context could make selling a (static) cake speech in one context but not another (you mentioned that in your post).

Shag from Brookline said...

"Cake speaketh with forked layers."

egarber said...

OK, here would be my holding. :-)

Merely selling a cake - custom or otherwise - is not a form of protected speech, although merchants have a right to not engage in express ideology.

A. Association with a wedding doesn’t constitute express ideology.

B. Within the wedding context however, a baker has a right to not engage in explicit speech (for example, a cake decoration stipulating that “gay marriage is the only one that matters!”)

Ok. Grade me. Haha.

Rich said...

Your Problem #1 gets to heart of the essential disagreement over this case. You dismiss the notion that the baker's objection could be classified as "ideological" (and Colorado officials clearly thought the objection could not be so classified because otherwise they would not have claimed that the law was violated). That conclusion is based on the notion that the right to a same-sex wedding is part of the essential nature of mankind and thus that discriminating against same-sex weddings is the equivalent of discriminating against the participants on the basis of sexual orientation. But the baker and Noel Francisco would argue that their objections are properly classified as "ideological" and that Colorado (despite the statutory language) is applying its law to an ideological objection. They would argue that they are not discriminating against gays but rather have an ideological objection to a particular activity without regard to who is participating in it. Some assert that this issue was already decided by past Supreme Court decisions, but yesterday's oral argument demonstrates that it was not.

Joe said...

If it's the ceremony, not the cake, the official Trump position, trying to go with a limiting principle for 1A purposes, seems to fall. Someone there to provide cheese or chairs would apparently be involved in the ceremony too. Any attempt to personalize would provide an "individual" touch. Arbitrary line drawing that results in discrimination in a PUBLIC accommodation.

The sculptor even here isn't "compelled." The person is CHOOSING to enter into a public accommodation. When people do that, they repeatedly have to help people obtain goods and services in the promotion of unpleasant things. Kinkos runs off documents for ideologies owners might strongly oppose. Gays repeatedly do things like that when they work, again, in public accommodations.

Not that it seems to even come up in this case, since it didn't get far enough to go into specialized cakes (going by some accounts of the facts).

Joseph said...


The baker is only arguing that the cake is speech and he cannot be compelled to speak. I think Professor Dorf is right in his third point that the real objection is any kind of association with the event, but that simply doesn't relate to the limited 1st Amendment argument made to the Court.

Opening a business does not negate constitutional rights. While that would be an easy standard for courts to administrate, that's not the rule. Even commercial speech - basically defined as relating to commerce (eg advertisements) are afforded some First Amendment protection. Look no further than last year's decision in Expressions Hair Design where the Court, 8-0, held that there was a regulation of speech where the law concerned communication of prices. You may argue the present case doesn't concern speech at all, but if it does there is not an exception based on the choice to open a business. That simply has nothing to do with a law compels someone to do or say something in the course of that business.

Stuart McPhail said...

Re Objection 2 - Justice Alito actually asked an interesting follow up question: he asked the SG if someone went to a restaurant where the chef made dishes that were highly elaborate art, could the chef refuse to make the same dish for a customer? 38:20-25. There never was a clean answer, but it seems like the SG was going to say the chef could object, even if it was just a mechanical copy of what the chef produced before. 39:2-8. The court didn't seem particularly pleased with that answer - Justice Gorsuch followed up by asking what the line was then. And the cake-shop's attorney later said that he *would* have to bake the same cake. 76:11-12.

Joe said...

JS, it is not being denied that a business or more specifically a public accommodation "negates constitutional rights." It does, unlike a more private act, open up more legitimate regulation. This includes in various respects "compelled speech" such as disclosure laws of various types. So, I need not argue there is "no speech at all" here.

My comment was in part specifically about Prof. Dorf's wider concern and in answer to a later comment; as you suggest, some arguments here are more open-ended, and that specifically needs to be addressed too.

CJColucci said...

If the Klan opens a bookstore to sell its carefully-selected stock of racist literature, including its own publications, can it refuse to sell to black customers?

Joseph said...

Joe, I take it that you meant "it is not being argued...."

We seem to agree on the topic of commercial speech, provided it is understood that does not simply mean "speech by a business."

Your reference to a "more private act" doesn't make sense . We are speaking of private (as opposed to public) enterprises and of course the most public of speech (in terms of forum and reach) does not warrant less protection than speech that is somehow less publicly expressed.

What fundamentally did not make sense in your first post was your argument that there is not compulsion to speak because a "person is CHOOSING to enter into a public accommodation." That's plain wrong. And that's very different from saying the government can require certain disclosures and the like in the course of running a business.

I suggested you might make the argument that there is no speech at all but of course you don't need to. But I'm not sure what your argument is.

Joe said...

JS, I appreciate the response & sorry for any confusion.

First, disagree that "more private act" doesn't make sense. The issue here specifically is a public accommodation law. This arose in the 1960s: you need not serve black people pies at your home. But, if you run a public accommodation, the government can require it.

[A "business" and a "public accommodation" can be different, but both are involved here.]

This is also what I meant by compulsion: the person is choosing to enter into a business involving a public accommodation. This involves serving the public and both the customer and the owner here has benefits and obligations, of a specific "public" nature, growing out of this voluntary action. Yes, regulations are "compelled" in a fashion. But, it is not a sort of "involuntary servitude" -- people choose to enter the field.

I still am not saying there is "no speech at all." I need not -- speech being involved does not in itself means the baker wins. Anyway, that really goes beyond what the specific concerns of my original post was intended to address at any rate.

Joe said...

ETA: The responses "no speech at all" reference touches upon my original comment's concern for the breadth of a possible argument. For instance, involvement in the ceremony, whatever that means, need not specifically involve speech. But, I personally don't want to argue "no speech at all" is involved here. Don't need to say that for the baker to loser imho.

Joseph said...

Joe, probably my last response, and a non-contentious one (aside perhaps from my suggestive parantheticals), as this format is not well-suited for lengthy discussion. It is accepted that the bakery qualifies as a public accommodation. Is your argument that even services unquestionably qualifying as speech (and otherwise protected by the Constitution) - if offered by a place of public accommodation (regulated by statute) - must be offered in accordance with non-discrimination laws?

Shag from Brookline said...

Is a bakery that sells "hot cross buns" engaging in speech? Can it limit sales to Christians who believe in the baker's Christian values?

azez said...

افضل شركة تنظيف كنب بالدمام
افضل شركة تنظيف سجادبالدمام
شركة تنظيف كنب بالدمام
شركة تنظيف مجالس بالدمام
شركة تنظيف كنب ومجالس بالدمام
شركة تنظيف السجاد بالدمام
شركة تنظيف سجاد بالدمام
شركة تنظيف موكيت بالدمام
شركة تنظيف خزانات المياه بالدمام
شركة تنظيف وتعقيم الخزانات بالدمام
شركة تنظيف خزانات بالدمام
شركة غسيل خزانات بالدمام
شركةنظافة خزانات بالدمام

Joe said...

The term "in accordance" can mean various things.

I think this case is simpler (even libertarian free speech advocate Eugene Volokh is on the side of the couple) with cakes but yes agreed with the court held that photographers have to act in accordance with such laws in respect of serving gay people. If this means the specific content of the speech, such as "gays are good" on the cake, it would be a different matter since that is specifically speech.

The photography case is trickier since speech is being crafted with photography but agreed with the holding of Elane Photography.

Joe said...

ETA: Also, Elane Photography is easier in respect to it being some a solo practitioner but some sort of corporation or related entity. Such entities are allow more flexibility -- someone else can do the services -- and with special public privileges come some responsibility of equal access as part of the deal.

Bob Moss said...

This discussion is going all over the map. Didn't I read that the defendant told them "no" before finding out any specifics of the cake they wanted? What happened to the actual controversies doctrine? If the specifics of the cake weren't discussed, there's no free speech controversy here. But well-settled law falls to right-wing ideology like a giant tree falls to the chain saw. The only issue should be civil-rights law. The defendant is advertising to the public, merely by having a store accessible to the public, clearly identified as providing wedding cakes. Anyone who wants to discriminate on the basis of customers' gender preference must not have such a store, and must only advertise in venues specifically targeted to homophobes, such as newsletters of churches which clearly condemn same-gender sex as part of their religious teaching.