A Baker's Toxic Recipe for Discrimination

A ruling for the bakery owner in the so-called “cake case” before the Supreme Court could inflict untold harm on gay people, true religious liberty, and civil rights.

October 18, 2017

Cross-posted from The American Prospect

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

The new Supreme Court term has led to a raft of commentary suggesting that the marquee case Masterpiece Cakeshop v. Colorado Civil Rights Commission poses a tough call for the nation’s highest court. The case, involving a conservative Christian baker’s defiance of his state’s nondiscrimination law in refusing to make a wedding cake for a same-sex couple, is likely to be a 5-4 nail-biter, as many dedicated court-watchers predict. Hardly an isolated episode in the ongoing culture wars, Masterpiece Cakeshop is part of the current aggressive conservative drive for religious and “conscience” exemptions from neutral and generally applicable laws and policies not to their liking.

The justices on the court’s farthest right flank (Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch) are expected to side with the baker, with the four more liberal members (Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan) going the other way, and conservative “swing” justice Anthony Kennedy, at once “the court’s most prominent defender of gay rights and most ardent supporter of free speech,” as Adam Liptak of The New York Times has put it, playing his familiar role as The Decider.

How Justice Kennedy votes in Masterpiece Cakeshop will provide one of the term’s top dramas. But the suggestion by the Trump Justice Department and other players on the baker’s side of the litigation that discrimination against gay people is somehow not as pernicious or harmful as racial discrimination hardly jibes with the 81-year-old jurist’s legacy-cementing opinions in Obergerfell v. Hodges(legalizing same-sex marriage nationwide) and United States v. Windsor (striking down the Defense of Marriage Act that excluded same-couples from federal marriage benefits).

“Justice Kennedy movingly recounts the harms of discrimination on the basis of sexual orientation,” says Professor Robert Post, of Yale Law School. “These harms are both material and dignitary; they result from the stigmatization of being treated as a member of an oppressed minority instead of as an individual. The harms are vivid and striking, and they are quite sufficient to place anti-gay discrimination in the same class of odious behavior as racial discrimination.”

Justices will hear oral arguments on December 5 and issue a ruling by the end of the court’s term in June.

On the merits, this should not be a hard case. With no disrespect to the baker, Jack Phillips, his deeply-held convictions or indisputable flair with a bowl of batter and fondant, his legal arguments badly mangle the relevant state law, past court decisions, and hallowed constitutional values. If ratified by a majority of justices, many people would be hurt and the architecture of equality weakened. Both civil rights enforcement and the wise balance the nation’s Founders embedded into the First Amendment’s religion clauses—protecting the free exercise of religion while forbidding government establishment of religion by favoring one faith over another, or over nonbelievers—could be grievously undermined.

Court filings by the ACLU (which represents the same-sex couple at the center of the controversy, Charlie Craig and David Mullins) and informed commentary, including a sharp Scotusblog post by University of Pennsylvania Law professor Tobias Barrington Wolff, eviscerate the baker’s core claims of religious infringement and impermissible government-compelled speech.

In a nutshell, the Colorado Anti-Discrimination Act is a content-neutral, generally-applicable law targeting discriminatory conduct, not religion or speech—the sort of law the Supreme Court has long said does not violate the First Amendment right to free exercise of religion. The creativity and artistic skill that Mr. Phillips puts into the design and baking of custom wedding cakes does not change that. Nor does it transform the act’s equal treatment provisions into compelled speech that the Supreme Court frowns upon.

Notably, no one is required to endorse or disseminate a specific government message—the basis for the Supreme Court’s invalidation of state requirements that students recite the pledge of allegiance to the flag (West Virginia State Board of Education v. Barnette) or carry a state’s ideological motto on one’s license plate (Wooley v. Maynard). Also, a merchant selling his or her talents to the general public is not the same as a private group organizing a parade that can exclude participants out-of-synch with its chosen message (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston).

Moreover, there cannot be compelled speech if there is no speech: the nondiscrimination statute at issue in Masterpiece Cakeshop regulates conduct, not speech. To the extent a wedding cake produced with Mr. Phillips’ artistic talents coveys a celebratory message, it is reasonably understood to belong to the couple purchasing it for their celebration.

Even if a commercial bakery’s sale of wedding cakes in the public marketplace was considered “expressive” conduct conveying a message, it can be regulated under a 1968 Supreme Court ruling if, as here, it furthers an important government interest unrelated to speech suppression—and if the “incidental restriction on First Amendment freedoms” is no greater than needed to further that government interest.

The assertion that requiring the baker to customize a wedding cake for a same-sex couple would also mean requiring a Jewish baker to make a cake with a Nazi symbol or for a neo-Nazi gathering is a dishonest, if clever, distraction. All the nondiscrimination law says is that when a bakery sells a particular product, like custom wedding cakes, it must sell it to all customers, regardless of their race, gender, or sexual orientation or other protected characteristicHate groups are not a protected category under the law and nothing prevents a bakery from having a blanket policy against selling swastika cakes to anyone.

A muscular public relations effort is underway to portray Mr. Phillips and his discriminatory conduct in a sympathetic light, in part by inaccurately depicting the injury inflicted on the same-sex couple as a mere inconvenience since they were able to obtain a wedding cake elsewhere, and pointing to the baker’s willingness to sell them other baked goods. Smart strategy, perhaps, but nothing should obscure the extreme, and extremely dangerous nature of the baker’s continued pursuit of a First Amendment exemption.

The case has a discomfiting lineage. Indeed, the resemblance is uncanny between the baker’s legal aspirations and the Trump administration’s new regulation radically rolling back the requirement under Obamacare that employers provide insurance to cover women’s birth control without a co-pay and another order easing the way for religious and also moral exemptions from government laws and policies generally.

“After failing to prohibit abortion and same-sex marriage, conservatives have sought to create religious exemptions from laws that protect the right to abortion or same-sex marriage,” Reva Siegel and Douglas Nejaim, Yale law professors and pioneering scholars in this realm, explained two years ago in The American Prospect. “Without change in numbers or belief, religious conservatives have shifted from speaking as a majority seeking to enforce traditional morality to speaking as a minority seeking exemptions from laws that depart from traditional morality.”

This case has a shameful antecedent, too, in the religious-based resistance seeking to perpetuate racial discrimination in public accommodations following enactment of the Civil Rights Act of 1964. This point is eloquently conveyed in a NAACP Legal Defense and Educational Fund brief supporting the mistreated same-sex couple.   

American courts “have repeatedly rejected religious arguments justifying racially discriminatory acts,” the storied civil rights organization noted, citing among other cases, Loving v. Virginia, the Supreme Court’s landmark 1967 ruling striking down Virginia’s anti-miscegenation laws and Newman v. Piggie Park Enterprises, Inc., a 1966 ruling that rejected South Carolina restaurant owner’s claim that requiring him to serve African Americans denied him the free exercise of his religious beliefs and violated the First Amendment. “The basis for the courts’ rejection of religious arguments supporting racial discrimination are equally applicable to religious arguments supporting sexual orientation discrimination,” the Court found in resolving the Piggie Park conflict, adding that both sorts of discrimination inflict “the same loss of personal dignity.”

A no less profound aspect of the Masterpiece Cakeshop case is its potential to erode or even erase a concern for third-party harm, a key principle behind the constitutional balance that limits the exercise of religion from veering into the establishment of any one religion over another, thereby preserving true religious liberty in America.

That principle figured heavily even in the Supreme Court’s unfortunate 2014 Hobby Lobby decision interpreting the federal Religious Freedom Restoration Act, to provide an exemption from compliance with President’s Obama’s so-called “contraception mandate” to a “closely held” private for-profit business with religious objections. The 5-4 ruling explicitly assumed third parties would not be hurt since the government could still ensure employees full contraceptive coverage using an existing accommodation provided for religiously-affiliated nonprofits.   

There is no ready escape hatch here: Essentially, the bakery owner and his supporters are calling for same-sex couples to bear the significant burden of his religiously-based beliefs—an outcome at odds with the First Amendment’s thoughtful design and constitutional and civil rights precedents.

Granting business owners exemptions from anti-discrimination laws based on their religious beliefs would be a radical development, extending a new constitutional right. The Trump Justice Department’s suggestion to limit that exemption to businesses selling custom goods or services involving a degree of expression or artistry for an event like a wedding would not remedy its cruel effects. That description fits countless businesses that make artistic and creative choices, going well beyond bakers or the wedding industry, and inevitably, the cruelty would not be confined to one minority group. The prospect of tearing a gaping hole in America’s social fabric and crushing civil rights across-the-board should be a flashing red light. 

(Photo: AP)