By Eric Segall





, co-owner of Masterpiece Bakeshop, who refused to bake a cake for a same-sex wedding. Colorado law prohibits businesses from refusing to cater to customers because of their sexual orientation. Phillips argues that both the free speech and free exercise clauses of the First Amendment prohibit Colorado from punishing him for his refusal. Last week, I wrote a If you are reading this Blog, you probably know that this Fall the Supreme Court will hear a case brought by Tom Phillipsco-owner of Masterpiece Bakeshop, who refused to bake a cake for a same-sex wedding. Colorado law prohibits businesses from refusing to cater to customers because of their sexual orientation. Phillips argues that both the free speech and free exercise clauses of the First Amendment prohibit Colorado from punishing him for his refusal. Last week, I wrote a piece for SCOTUSBlog arguing that his free exercise claims should be dismissed but conceding that his free speech claims are truly difficult. It turns out, however, that those speech claims cannot be satisfactorily resolved on the present record, and therefore the Court should not resolve Phillips' speech claims.







Let’s all agree (or at least assume) that the state of Colorado could not force a wedding singer to perform a particular song requested by a customer because doing so would obviously violate the singer's first amendment rights (same with a poet or a painter). Let’s also agree that Colorado could (without regard to freedom of speech) forbid an air conditioning company from refusing to fix an AC unit at a hall where a same-sex wedding is taking place simply because the owner of the company objects to same-sex weddings. The reason is that fixing air conditioners simply isn’t speech. The hard question in Masterpiece is where does a wedding cake fall in that spectrum for free speech purposes.





I think it is clear that the state cannot force Phillips to write a pro-same-sex-marriage message on the cake or even design it in a way to communicate that message (the couple's actual cake eventually was decorated with a rainbow which is a symbol of the gay rights movement). That would be the same as making a singer perform a song against her will. Although it is not frivolous to argue that the state's compelling interest in fighting discrimination might justify that compelled expression in the context of commercial services, I think that it is a tough argument when there are many other vendors willing to provide the same service.





On the other hand, the first amendment should not block Colorado from requiring Phillips to sell candles, napkins, or off-the-shelf generic food products just because he has a religious objection to same-sex weddings. That kind of exception would blow a huge hole through non-discrimination laws and would allow business owners who sell items with no expressive component to refuse service to people on the basis of their race, gender, religion or sexual orientation. As many have argued, the provider of napkins or appetizers to weddings does not send a message of approval of that wedding.





So, where does Phillips' refusal fit in? Unfortunately, it appears the record does not supply the answer and the Court should not make one up. Here's is what the administrative law judge found

6. Phillips informed Complainants that he does not create wedding cakes for same-sex weddings. Phillips told the men, “I’ll make you birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.”

7. Complainants immediately got up and left the store without further discussion with Phillips.

8. The whole conversation between Phillips and Complainants was very brief, with no discussion between the parties about what the cake would look like.

9. The next day, Ms. Munn called Masterpiece Cakeshop and spoke with Phillips. Phillips advised Ms. Munn that he does not create wedding cakes for same-sex weddings because of his religious beliefs, and because Colorado does not recognize same-sex marriages.

It appears that there was never a conversation about the possibility of a generic wedding cake. The Colorado decision that Phillips appealed said that, after the couple asked Phillips if he would make them a cake, "Phillips declined, telling them that he does not create wedding cakes for same-sex weddings because of his religious beliefs, but advising [them] that he would be happy to make and sell them any other baked goods." And, in his brief in the Supreme Court, Phillips says that he "politely explained that he does not design wedding cakes for same-sex marriages, but emphasized that he was happy to make other items for them." It is not clear from the record whether the "other items" refers to other wedding items or baked goods for other occasions.





There are two major unanswered questions directly relevant to Phillips' free speech claims. First, if he were able to make the couple a generic cake, but refused, that would likely render him liable under the Colorado civil rights law without first amendment protection. A bare chocolate cake with no writing or special design does not communicate a message. But if the couple insisted on a cake with a message supportive of same-sex marriage, Phillips should probably prevail under the forced expression doctrine of the first amendment (unless the law satisfied strict scrutiny).





The other factual issue that is unresolved is whether Phillips would have provided generic baked goods (i.e.,cupcakes) to the wedding or whether he was saying he could provide nothing to them of use for the wedding. Again, it is hard to see why the first amendment free speech clause would prohibit Colorado from making it illegal for a vendor to refuse to provide non-expressive commercial goods to same-sex weddings. But there apparently was no conversation about other goods for the wedding so again we don't know the answer to that question.





It may well be that all of Phillips' wedding cakes are custom-made, though that is also not clear from the record. But if Phillips had refused to bake even a plain vanilla cake, with no symbol or expression, then it also is clear that he would refuse to sell them anything for their wedding, even a clearly generic, non-communicative cupcake. As explained above, the legal consequences differ depending on whether Phillips was saying he would not provide the couple anything expressive or whether he was saying he would not provide them anything at all.





The Court could possibly find that all wedding cakes, no matter how plain, communicate support for the wedding for which it it provided. But let's be honest, that is just ridiculous. Therefore, the speech claims in this case turn on exactly what Phillips was willing or not willing to do. And, the Supreme Court of the United States is not the place to answer that question in the first instance. Because, as I explain here , Phillips should not win on his religion claims, the Court should either remand the case for further fact finding, or even better, decide that it should never have decided to hear the case in the first place.