SCOTUS Takes On The "Cake or Controversy" Requirement, or, The Queer Motorist's Lavender App

By Diane Klein

In 1936, a Black New York City postal worker named Victor Green began compiling and publishing a travel guide - a pamphlet, really - that came to be known as "The Green Book."  Published annually for thirty years, growing from a local New York guide into an international travel directory, this booklet included lists of establishments - "Hotels, Taverns, Garages, Night-Clubs, Restaurants, Service-Stations, Automotive, Tourist-Homes, Road-Houses, Barber-Shops, Beauty-Parlors," "Trailer Parks and Camps, Summer Resorts" - that would serve Black patrons. Without such a guide, travel throughout much of the United States during the Jim Crow era was, at best, uncomfortable - and at worst, a mortal danger.  With nowhere to safely sleep, eat, or even refill the gas tank, a car trip was more daunting than inviting.  The Green Book aimed to fill that gap.

The 1938 edition of what that year was called "The Negro Motorist Green Book," reprinted a letter to Green, that read, in part,
It is a great pleasure for me to give credit where credit is due. Many of my friends have joined me in admitting that "The Negro Motorist Green Book" is a credit to the Negro Race. It is a book badly needed among our Race since the advance of the motor age. Realizing the only way we knew how and where to reach our pleasure resorts was in a way of speaking, by word of mouth, until the publication of "The Negro Motorist Green [B]ook".  With our wishes of your success, and your e[a]rnest efforts.  We earnestly believe "The Negro Motorist Green Book" will mean as much if not more to us as the A.A.A. means to the white race.
A decade later, the Introduction to the 1949 edition of "The Green Book" contained these plaintive words:
There will be a day sometime in the near future when this guide will not have to be published.  That is when we as a race will have equal opportunities and privileges in the United States.  It will be a great day for us to suspend this publication for then we can go wherever we please, and without embarrassment.  But until that time comes we shall continue to publish this information for your convenience each year.
What a world of feeling is contained in that word,"embarrassment" - and in the understated reference to the traveler's "convenience."  More revealing is the admonition printed on the cover of the editions through the 1950s and 1960s: "Carry Your Green Book With You/You may need it!" World War II had come and gone, and to our continuing shame, Black Americans still could not safely travel through their own country, or be confident ordinary shopkeepers would accept their business.  Even as late as 1963-64, the cover of the Green Book suggested itself "for vacation without aggravation."

These widely-recognized difficulties in travel were part of the impetus for Title II of the Civil Rights Act of 1964, 42 U.S.C. Section 2000a, which outlawed discrimination in "any place of public accommodation." The places of public accommodation enumerated in the federal statute read like the index of The Green Book:
Any inn, hotel, motel...any restaurant, cafeteria, lunchroom, lunch counter, soda fountain...including, but not limited to, any such facility located on the premises of any retail establishment; or any gasoline station; any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment.
Of course, the forms of legal discrimination and refusals of service targeted by Title II did not just affect travelers.  People of color experienced these forms of exclusion from commercial establishments in their very own hometowns every day.  They formed the texture of American life for Black people, for decades. As James Baldwin put it in 1967, "America, where black men have been taught to be ashamed of everything, especially their suffering."

And yet, the most notable thing about Title II is - it worked.  Despite notoriously hysterical, racist, and even violent opposition at the time, Title II has mostly succeeded.  As Prof. Brian Landsberg, who worked for the DOJ in the 1960s, has observed, "The most integrated institutions in the U.S. today are our public accommodations."  In April, 2017, the South Carolina African American Heritage Commission released a mobile app, "The Green Book of South Carolina," that pays homage to Victor Green's creation.  It is part of the history of a shameful but largely bygone world.

With this history in mind, many of us who instinctively support what we might call "consumer democracy" - boycotting establishments whose owners support policies we oppose, and patronizing those whose politics we share or support - feel quite differently when the shoe is on the other foot, and it is the retailer refusing to serve the customer for biased or sectarian reasons. Others bristle at the asymmetry that permits individuals to be discriminating shoppers, but not discriminating shopkeepers. It might seem that the owner of a private business should be able to pick and choose who to serve. We might even imagine the market would somehow "solve" discrimination, since refusing the trade of paying customers appears economically irrational.

American history and law teach otherwise.  Legally and constitutionally, the general right of government to regulate private business in the public interest rests on a seventeenth-century common law principle, affirmed by the U.S. Supreme Court in Munn v. Illinois in 1877.  The Syllabus explains it this way:
When the owner of property devotes it to a use in which the public has an interest, he in effect grants to the public an interest in such use, and must, to the extent of that interest, submit to be controlled by the public, for the common good, as long as he maintains the use. He may withdraw his grant by discontinuing the use.
The law treats shopper and shopkeeper differently not only to reflect our understanding of how private and government-sponsored action created and sustained racial subordination. It is also because the retailer who offers goods or services to the public is the beneficiary of numerous public (and taxpayer-supported) goods. The street cleaner, the fire department, the U.S. Postal Service, the utility companies serve every business on the street, because in so doing, they serve the public - all of us. And so, in turn, must those businesses.

Why would anyone wish to take us back to a time in which part of our population is relegated to a furtive and uncertain existence, fraught with legalized discrimination and in need of insiders' advice about how to find a safe hotel, restaurant, or gas station, when out of town - one where you will be treated like just another customer, a fellow citizen, and not turned away, humiliated (or worse)?

If certain anti-LGBT legislators and litigants have their way, our LGBT travelers to red states and counties - and residents as well - will need a "Lavender App" to negotiate their own country, hoping (with no guarantee) that any given community will include LGBT-friendly doctors, dentists, landlords, innkeepers, restaurateurs, and grocers (to say nothing of florists, bakers, and photographers).  And so too will all of us who have out LGBT friends, family members, or business associates with whom we travel or socialize.  Any of them (or those "suspected" of membership in those groups?) could be turned away from a restaurant or hotel.  "Embarrassment" and "aggravation" won't be the half of it.  The pretext for such discrimination will likely be the religious beliefs (more specifically, the self-described fundamentalist or evangelical Christian beliefs) of the business owner.

While religious arguments against LGBT rights may be gaining more traction than similar arguments did against the Civil Rights Act, Prof. Michael Kent Curtis of Wake Forest has shown that "[t]he claim that opposition to homosexuality or gay marriage is religious, while opposition to integration and interracial marriage was not, is mistaken." Title II has succeeded so well that many people today may not be aware that those resistant to desegregation in American life also cited their "Christian" values, and claimed the Bible supported - or even demanded - segregation and the subordination of Black people.  But they did.

As Curtis documented, "Not only could religious arguments for segregation be marshaled, they were marshaled" (emphasis added).  Moreover, these purportedly Scriptural arguments related directly to a sexual practice: intermarriage and interracial sex. "Concern about one type of sexual activity was at the heart of the religious case for segregation. According to segregationists, race mixing would lead to interracial marriage and interracial sex, contravening God's plan," writes Curtis. Still, Title II survived this threat.

But federal law in this area has important limitations.  Because Title II was passed under the Commerce Clause, only those business activities that affect interstate commerce are covered. And like its much-amended sister section Title VII (employment antidiscrimination), Title II has also not been amended to include sexual orientation (or gender identity). In fact, Title II doesn't even include sex or gender (but only "race, color, religion, or national origin"). (For this reason, exemptions to sexual orientation discrimination based on the Religious Freedom Restoration Act, also known as "RFRA," are not necessary.)

However, broader protection for LGBT people, including protection from retail discrimination, can be found in state and local law.  Colorado has such a law, the Colorado Anti-Discrimination Act ("CADA"), C.R.S. 24-34-601, which provides protection from discrimination on the basis of both sexual orientation and marital status, by "any business engaged in any sales to the public" and more specifically, any business "offering retail sales to the public" and "any place to eat."

Which brings us at last to Masterpiece Cakeshop, Ltd.; and Jack Phillips v. Colorado Civil Rights Commission; Charlie Craig; and David Mullins.

Back in 2012, Craig and Mullins sought to buy a cake from Jack Phillips' shop, Masterpiece Cakeshop, to serve at their wedding reception (they planned to marry in Massachusetts, where such marriages were already legal).  Phillips refused; Craig and Mullins filed a complaint with the Colorado Civil Rights Division. Phillips lost, appealed, and lost again before the Colorado Court of Appeals; the Colorado Supreme Court denied cert.  After coming up in conference every week since January 2017, the U.S. Supreme Court finally granted cert. June 26, 2017, and the case will be heard in the upcoming 2017-2018 term.

Other than the self-serving and tendentious characterization of baker Phillips as "a cake artist," necessary to set up the "compelled speech" argument, Phillips' cert. petition puts the question clearly enough: "Whether applying Colorado’s public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment."  For what it's worth, Phillips not only refuses to make same-sex wedding cakes; he also forswears Halloween baking, alcohol-infused baking, and cakes "promoting" or "celebrating" other "messages his faith prohibits."

Phillips v. CCRC thus presents the increasingly familiar clash between a same-sex couple and a commercial enterprise catering to marrying couples, who refuses the couple service because the vendor's version of Christianity purportedly prohibits it.  Whether the vendor is a photographer, florist, or baker, the First Amendment argument for an exception to antidiscrimination law remains the same.  (As does the vendor's counsel, the "800 pound gorilla of the Christian right," the Alliance Defending Freedom, whose founders include evangelical broadcaster James Dobson and whose funders include various Betsy DeVos family enterprises.) (Are there no cases from tuxedo-rental shops and bridal gown sellers only because they don't mind renting an extra tux or selling an extra dress?)

Now, one might imagine that the potent combination of 2015's same-sex marriage decision, Obergefell v. Hodges, and the strong language of CADA, Colorado's state law, would leave a cake baker with Phillips' biases few legal tools. But the First Amendment is potentially an even bigger stick, and it is the one being wielded by anti-LGBT legal activists hoping to roll back decades of civil rights gains, leaving Obergefell's guarantee of marriage "equality" an empty shell.

In deciding the case, the high Court will almost certainly not be able to avoid wading into the issue of whether making and decorating a cake is (highly protected) "speech" or (merely) "conduct," and if the former, whether making a wedding cake for a paying customer is properly regarded as the baker's speech, or the customer's.  From Phillips' point of view, of course, the argument is that making a wedding cake expresses the message, "I am Jack Phillips, and I approve of this union." Being legally prohibited from withholding that tacit approval, Phillips argues, also transgresses his First Amendment free exercise rights.

It is easy to see how forced compliance with a general rule (like a work uniform or schedule) might cause a conflict with religious obligations or proscriptions (for example, regarding dress or Sabbath observance).  But the idea that requiring compliance with a law of general application causes someone to violate his or religious beliefs, not directly,b y requiring the person to engage in religiously prohibited conduct themselves, but at second hand, because of what compliance communicates or enables a third party to do, takes some fancier legal and argumentative footwork.

Enter the dancing shoes of Neal Gorsuch.  While sitting on the Tenth Circuit Court of Appeals, now- Justice Gorsuch was part of the panel that heard Hobby Lobby, Inc. v. Sibelius, on its last stop before the Supreme Court.  Hobby Lobby is, notoriously, the case that ultimately granted a family-held corporation a religiously-based exemption from contraception coverage mandated by the ACA.  Even if we take Hobby Lobby's owners' (the Greens) religious objection to certain abortifacient contraceptives at face value, neither Hobby Lobby itself (a business) nor the Greens were in any way compelled to use such contraceptives, nor even to pay for them in any direct way.  So where is the free exercise violation?

To answer that, Gorsuch wrote a separate concurrence, one likely to provide a roadmap for Phillips' counsel now that Gorsuch sits on the Supreme Court.  The cornerstone of his analysis is the notion of "complicity."  Speaking for the Greens, "As [Gorsuch says] they understand it, ordering their companies to provide insurance coverage for drugs or devices whose use is inconsistent with their faith itself violates their faith, representing a degree of complicity their religion disallows."

(Of course, even the word "for" here is much too strong: which or even how many employees will actually use their employer-provided health care in this way is unknown. A more accurate way to put it would be "insurance coverage one of whose numerous benefits might be used in partial payment for drugs or devices..." etc. But apparently even this is too much for the punctilious Greens.)

The problem with complicity models as applied to public policy is that they always prove too much. In private life, it may be relatively easy to identify objectionable behavior with which one is complicit, and from which one might wish therefore to withdraw oneself and one's support.  But if the Greens were made impermissibly "complicit" in their employees' use of abortifacient methods of contraception simply because such methods were included in federally-mandated employer-provided health care, how are they any less complicit if their employees use their Hobby Lobby salary simply to purchase such contraceptives?  It is no answer to say that in the latter case, the employee has exchanged her labor for her salary, because insurance is also part of her compensation - it, too, is exchanged for her labor.  Does simply employing someone who might use such a device make the Greens complicit?  How about someone whose health care covers a daughter or partner who might?  How about someone who might use the money they earn at Hobby Lobby to pay for a friend's IUD? Where does it end?  Should employees be required to forswear engaging in conduct prohibited by a religion not their own, simply in order to work at a store that sells sequins, styrofoam, and felt?

Truly, it's a sad day for academia when the writers at SNL seem to have a better grasp on this concept than a federal judge with a D.Phil.  In their March 2017 perfume parody ad aimed at Ivanka Trump, the tagline for the fragrance called "Complicit" is, "for the woman who could stop all this...but won't." This short joke captures what Gorsuch (for the Greens) seems to miss: one is not "complicit" in every activity to which one in any imaginable sense contributes. One's withdrawal of support has to matter, even if, acting alone, one could not single-handedly prevent the outcome.  The etymological (and hence conceptual) connection between "complicity" and "accomplice" is actually relevant here.

Rather than relying for jurisprudential purposes on whatever potted theology the Greens theoretically subscribe to, Gorsuch would have done better to turn to Aquinas, whose "doctrine of double effect" was developed precisely for situations like this one, in which what is intended (the benign or at least neutral goal of compliance with a federal law of general application) has the foreseen but unintended consequence that at least some covered employees will use that insurance in ways the Greens neither intend nor approve. That foreseeable consequence is nevertheless not one for which the actor is morally responsible.

Nevertheless, it seems likely the ADF will encourage Gorsuch to take the same approach to Phillips that he applied to the Greens in Hobby Lobby, and argue that making a wedding cake for a same-sex couple is a form of "complicity" in their (religiously-disapproved) union and sexual relationship.

Phillips seeks an exemption from Colorado's law as it applies to cakes "celebrating any marriage that is contrary to his understanding of biblical teaching." But the laser-like focus of these "sincerely held religious beliefs about marriage," which exclude gay men and lesbians while disregarding all manner of sexual or marital misconduct in which opposite-sex couples might have engaged, reveals this flimsy fig leaf for the homophobia it is.  Does Mr. Phillips inquire of his opposite-sex wedding cake customers whether they have engaged in adulterous or premarital sexual relations, with one another or anyone else (both unequivocally Biblically prohibited)?  Not so far as we know.

Still, compared to a life-or-death matter like health insurance, permitting bakers like Phillips (and florists like Stutzman and photographers like Huguenin) to refuse to provide goods and services to same-sex weddings and receptions might seem like a small accommodation, even a trifling one, to protect their alleged free exercise of religion. After all, none of these Christian retailers is the only game in town, and one might argue that LGBT customers would probably prefer to take their business to someone who actually wants it.

If we simply weigh the harm of being denied service against the harm of being forced to facilitate (or be complicit in, or endorse) conduct to which one has a religious objection, the more profound nature of the religious interest will frequently, though not always, render it more significant than the customer's inconvenience.  Even so, this test would almost certainly not permit a physician to refuse to administer lifesaving treatment to a gay patient, even if it allowed a florist or baker to tell their gay customers to take their discretionary retail dollars elsewhere. Perhaps we can split the difference there? Short of life-or-death situations, perhaps we should accommodate these "sincere religious beliefs" (however odious).

Before we do, though, we should bring some skepticism to analyses of public accommodations law that magnify a highly attenuated religiously-derived notion of "complicity," while trivializing as mere "inconvenience" the harms suffered by those who are openly, legally refused service freely available to others.  They have concrete detrimental effects on human health, safety, and well-being. And equally significant, recall the language of The Green Book, the yearning it expressed, and the connection made there between genuine equality and the ability to travel freely, without the inconvenience and "embarrassment" of being turned away. That reference to "embarrassment" should scald the conscience, by reminding us that the systematic denial of service to groups of persons accomplishes their subordination. It leaves them both wounded and angry, with a sense of damaged identity that makes them feel ashamed when they seek service and are denied it. It is no accident that June's LGBT celebrations are called "Pride" events: they are intended to be an antidote to precisely that sense of stigma and shame created and sustained by a sense of unwelcomeness in the public mercantile sphere.

Refusal of service on the basis of membership in a historically degraded class underscores that degradation, and reinforces a view of such persons as lesser citizens. It insults and undermines the dignity of such persons; and it legitimizes all other forms of discrimination, legal or not, which they have suffered historically and continue to endure.  In this specific context, it communicates that this couple's love and marriage are not worthy of celebration as others' are - and that is the only "message" Phillips wishes to send, by operating a business allegedly open to the public in a discriminatory way.  

"Don't go there - they won't serve you," is advice no one in a free country should ever have to give - or receive.  As the Supreme Court put it in Munn (which actually mentions bakers specifically), a business owner unwilling to submit to public regulation of his business activity for the common good is free to discontinue it.  Today, those regulations include antidiscrimination laws like CADA.  No one is obliged to be in the wedding cake (or wedding flower, or wedding photography) business, at all. But if Jack Phillips chooses to engage in that business, then he must to submit to public control. An opinion that reaffirms those principles would be the real Masterpiece.