Elane Photography Discussion Post-Mortem: The Distributive Aspect of Speech and Religion Exceptions from Public Accommodations Laws

by Mike Dorf

As I noted in my Verdict column on First Amendment exceptions two weeks ago, claims for such exceptions have been much in the news lately--prompting a veritable mountain of commentary, including a fair bit from yours truly. Here I want to add a few more shovels of dirt to that mountain, but first, a couple of pieces of shameless self-promotion.

First, during the 10-11 am hour today, I'll be on MSNBC, talking about the Hobby Lobby cases, while the oral argument is going on in the courtroom. You know, in case you don't have anything better to do.

Second, pretty much as I anticipated in yesterday's post, during our discussion of Elane Photography, Professor Epstein mostly criticized public accommodations laws as such, largely agreeing with me that it's difficult to find free speech exceptions to such laws without undermining the laws themselves. Here I want to follow up that discussion with a point I might have made had the discussion taken a different turn.

I have in mind a distributive feature of exceptions for commercial actors from general laws. I think that for me, and perhaps for other liberals, part of the resistance to free speech and free exercise exceptions for commercial actors is that recognizing such exceptions would benefit business owners but not people who work for others for a living. I'll focus on speech but some of what I have to say will be relevant to religion as well, and thus a propos of Hobby Lobby.

Suppose two Albuquerque bakers: Elane and Jane. Elane owns her own bakery, whereas Jane works for the ABC Cake Shop (so-named, apparently so that it appears first in the Yellow Pages!). Elane and Jane are both opposed to same-sex marriage. Bill and Ted go to Elane Bakery and ask if Elane will bake them a wedding cake with the words "Blessed Marital Bliss for Bill and Ted". Elane says that, notwithstanding New Mexico's public accommodations law, she won't, because to do so would express a view--that same-sex marriages are "blessed"--with which she disagrees. Bill and Ted file a complaint with the New Mexico Human Rights Commission, but they know that such complaints can take a while to adjudicate and, in the meantime, they need a wedding cake.

So Bill and Ted go to ABC Cake Shop, where the owner, Alice B. Chittendon (okay, I made that name up), tells Bill and Ted that she would be delighted to have their business. She takes their order and then asks her employee, Jane, to bake the cake. Jane tells Alice that she, Jane, doesn't want to bake the cake because she disagrees with the view that a same-sex marriage can be blessed. Alice tells Jane that she can't have her employees deciding on a cake-by-cake basis whose business to accept, and that if she doesn't bake and decorate the cake for Bill and Ted, Jane will be fired.

Jane pretty clearly does not have any kind of First Amendment claim that she is entitled to keep her job as a baker. Why not? Because the First Amendment, like nearly all of the rest of the Constitution, only applies to the government, and here it is Jane's private employer, not the government, who has told her to bake the offending cake. There's no state action, and thus no unconstitutional state action.

Juxtapose that result with the result sought by the critics of the New Mexico Supreme Court decision in Elane Photography. They say that (the real and presumably my hypothetical version of) Elane is entitled to a free speech exception, even though the burden on (the actual) Elane--a declaratory judgment and attorney fees--is substantially less than the burden on Jane--loss of her job. Put differently, to say that there are free speech exceptions from public accommodations laws means that there are such exceptions for employers, but not for employees.

Now, it might be objected that I've gilded the lily here, because we can produce lots of seeming anomalies by juxtaposing results from domains in which there is state action with results from domains in which there isn't. And that would be a fair objection were it not for the fact that even when the First Amendment does apply, it affords employees very little protection.

Suppose that Sam, who is also opposed to same-sex marriage, bakes for a cafeteria at the University of New Mexico, which is a state actor. Let's suppose that Hillary and Gloria are UNM alumni and that they are having their wedding and reception on campus, and that the cafeteria is baking and decorating a cake with the inscription "Blessed Marital Bliss for Hillary and Gloria." Sam is told by his government boss to bake and decorate the cake. Sam declines on free speech grounds. Here there's state action, but Sam loses anyway, pursuant to the employee speech doctrine. As the SCOTUS summarized the doctrine in 2006, in Garcetti v. Ceballos, government employees cannot be disciplined for voicing their opinions, as citizens, on matters of public concern, but that right does not extend to speech within the scope of the employee's official duties--as decorating a wedding cake surely would be for a baker.

It might still be objected that all I have done here is to show that people with more money get to exercise their rights more effectively than people with less money. The First Amendment isn't offended when a billionaire pays for political speech that I can't afford to pay for, and so, according to this objection, it's likewise not offended when Elane is given an exception that Jane and Sam do not get. In this view, the law doesn't give Elane an advantage; her money does; if Jane and Sam had the capital and know-how to start their own bakeries (or photography businesses), they would be on an equal footing with Elane.

I think there is something to that objection, but that it misses a big piece of what's going on in the employee speech cases. Those cases do not, after all, rest on the public/private distinction, because both Elane and Sam are having their freedom restricted by the government. Rather, the employee speech doctrine rests on the premise that when one enters the realm of the market, one has less expressive freedom than one enjoys when speaking (or otherwise acting) simply as a citizen. At least where, as here, we are trying to decide whether to extend free speech protection to a new class of claimants, I don't see a very good reason to extend it to business owners, given the (much more substantial) restrictions we tolerate for employees.

Postscript: In one of the examples above, the setting is a public university. Readers may wonder whether I mean to suggest by this example that the same employee speech rules apply throughout the public university--e.g., whether I mean that a biology professor or a poli sci professor with unorthodox views would have no stronger claim than the baker. The answer is no. I mean to express no view whatsoever on the relation between academic freedom and the First Amendment, at least not today.