Imagine an alt-right group organizing a rally at a park in your hometown. The group—wanting to create as much publicity for itself as possible—decides that it wants to document the event for a promotional video. The group goes to a local videographer, who has covered political events for the Democratic Party, seeking to hire her to cover the demonstration. The videographer, who happens to hold deeply progressive beliefs, declines to serve the group upon learning that they are affiliated with the alt-right: she does not want her name attached to that movement and does not support their message. The group—angered that they have suffered alleged discrimination—hires the American Civil Liberties Union and sues the videographer for violating their state’s public accommodation law, which prohibits those offering services to the general public from declining service based upon political affiliation. Should the courts compel the videographer to cover the event? Should the law compel private persons and business to express speech with which they do not agree?

Of course, this factual scenario is complete fantasy. However, the question it asks is all too real and will be addressed by the Supreme Court of the United States when it hears Masterpiece Cakeshop, Inc. v. Colorado Civil Rights Commission in the coming term. The case has become famous throughout the United States as an example of anti-LGBTQ discrimination. Yet, this controversy presents liberty concerns that go well-beyond its particular facts. Should the government be able to compel business owners to engage in expressive conduct that they find odious or offensive? Few would endorse that proposition in the abstract. Yet, the Masterpiece Cakeshop matter presents a unique threat to liberty, as sympathy for the plaintiffs have led many to support a conclusion that would limit the expressive freedom of all citizens in matters beyond selling baked goods. On its face the Masterpiece Cakeshop case presents itself as simple matter of bigotry against homosexual couples. However, lurking beneath surface is a greater legal question that should concern all citizens.

Charlie Craig and David Mullins were a same-sex couple planning their wedding. They went to Masterpiece Cakeshop and spoke to its owner, Jack Phillips, about having a custom cake made for their reception. Mr. Phillips, a conservative Christian, was willing to make and sell the couple any baked goods, but refused to make a custom cake for their wedding. Mr. Phillips claimed he would have sold the couple any pre-made goods, but he could not engage in making a custom cake for the specific purpose of a same-sex wedding. Such conduct, he claimed, would violate his religious principles.[1] The couple later sued Mr. Phillips asserting that he had discriminated against them in violation of Colorado law. After losing in the lower courts, Mr. Phillips has appealed this matter to the Supreme Court.

Driving this controversy is what are known as “public accommodation laws.” Generally, these laws prohibit “public accommodations” (i.e. businesses open to the public such as, but not limited to, hotels, restaurants, retail stores, and theaters) from refusing service to members of a protected class because of that person’s membership in said class.[2] What is considered a protected class varies by jurisdiction. For example, forty-five states include race, gender, ethnicity, and religion as protected classes.[3] Some jurisdictions, however, go beyond race and gender and include sexual orientation, age, marital status, and even political affiliation as protected classes.[4]

Regardless of one’s thoughts on the virtue of public accommodation laws, their application in Masterpiece Cakeshop presents troubling issues regarding government’s ability to compel private speech. Returning to the example above, the videographer would certainly have violated the District of Columbia’s public accommodation law. She did not want to offer her services to the alt-right group because she did not support their politics. Yet, that is plainly discrimination based upon the group’s political affiliation, which is considered a protected class under some statutory schemes. It is doubtful that those who support the application of public accommodation laws against Mr. Craig would also support their application to the videographer. Therein lies the problem with support for the plaintiffs in the Masterpiece Cakeshop controversy: we want Mr. Craig and Mr. Mullins to win this particular battle, because decent people do not like seeing discrimination. However, we simultaneously do not want the necessary consequences that would come from their victory.

With these concerns in mind, what should the Supreme Court do with Masterpiece Cakeshop? Ideally, the Court would determine that Mr. Phillips never violated the public accommodation law at all. Mr. Phillips did not deny service to Mr. Craig and Mr. Mullins because they were a same-sex couple; rather he denied to provide a specific service for a particular event. If this distinction sounds obtuse, compare this case to the signature public accommodation case: Heart of Atlanta Motel v. United States.[5] There, a motel owner refused to provide service to all African Americans regardless of their purpose for staying at the motel. The owner did not refuse service only to African Americans who wanted to stay at the hotel for a specific purpose (for example, for a civil rights group meeting). In that sense, Masterpiece Cakeshop is markedly different than the traditional public accommodation case.

However, the issue of whether Mr. Phillips actually violated the public accommodation law is not before the Court. Rather, the issue on appeal is whether enforcement of the public accommodation law violated Mr. Phillips’s freedom of expression—i.e. does the First Amendment prohibit Colorado from compelling Mr. Phillips to bake a wedding cake? The First Amendment prohibits the government from forcing citizens (and businesses) to express messages with which they disagree.[6] This begs the question: is Mr. Phillips’s baking a cake for a wedding “expression” under the First Amendment?

Expression under the First Amendment is not limited to speech. It extends to all expressive conduct including “pictures, films, paintings, drawings, and engravings.”[7] In determining whether specific conduct is considered “expressive” courts apply a two-step test: (1) whether an intent to convey a particular message was present; and (2) whether the likelihood was great that the message would be understood by those who viewed it.”[8] The expression need not contain a “succinctly articulable” or “particularized” message.[9]

Under this standard, the Court should determine that Mr. Phillips’s cake constitutes expressive conduct: wedding cakes in the United States are a universally understood symbol of the celebration of marriage. Wedding cakes play a central role in most American receptions: cakes are usually left on display throughout the celebration and the couple’s cutting of the cake is a common ritual confirming their marriage. Any reasonable person viewing a wedding cake understands it constitutes a symbol condoning the marriage.

The Supreme Court should determine that Mr. Phillips’s conduct is protected by the First Amendment. Our courts have long recognized that the First Amendment “protects the right of individuals to hold a point of view different from the majority and to refuse to foster . . . an idea they find morally objectionable.”[10] The First Amendment prohibition on restraints on the voluntary public expression of ideas includes “a concomitant freedom not to speak publicly.”[11] Failure to rule in favor of Mr. Phillips would chip away at these principles and the amendment lying at the heart of American democracy.

Discrimination is an abhorrent—and unfortunately common—aspect of American life. It deserves to be rooted out and attacked at every opportunity. Those who criticize Mr. Phillips’s failure to serve Mr. Craig and Mr. Mullins are right to do so. In fact, I am one of those persons. However, the legal question before us is greater than whether we disapprove of Mr. Phillips’s conduct. Looking beyond the particular facts of this controversy, we are asked to define a central component of liberty in our democracy.

We must be wary lest our sympathy for Mr. Craig and Mr. Mullins limits our ability to understand the far reaching and disastrous consequences that could come from deciding this matter in their favor. If the government can compel Mr. Craig to bake a cake for a same-sex wedding, so too can it compel a progressive videographer to shoot an alt-right rally. This is a result that none should—and divorced from these facts, few do—support. It is a legal bromide that bad facts make bad law, yet there may be no greater danger of this than the Masterpiece Cakeshop controversy.

Steven M. Betz, Oct. 4, 2017

[1] Adam Liptak, “Cake is His ‘Art.’ So Can He Deny One to a Gay Couple?” New York Times, Sep. 16, 2017, accessed Sep. 21, 2017, https://www.nytimes.com/2017/09/16/us/supreme-court-baker-same-sex-marriage.html?mcubz=0.

[2] “The ADA: Questions and Answers,” U.S. Equal Employment Opportunity Commission, Jan. 17, 1997, accessed Sep. 21, 2017, https://www.eeoc.gov/facts/adaqa2.html.

[3] “State Public Accomodation Laws,” National Conference of State Legislatures, Jul. 13, 2016, accessed Sep. 21, 2017, http://www.ncsl.org/research/civil-and-criminal-justice/state-public-accommodation-laws.aspx.

[4] Id.; Eugene Volokh, “Discrimination Against Nazis in Public Accommodations,” The Volokh Conspiracy, Dec. 16, 2009, accessed Sep. 21, 2017, http://volokh.com/2009/12/16/discrimination-against-nazis-in-public-accommodations/; D.C. Code § 2-1402.31(a) (emphasis added).

[5] 379 U.S. 241 (1964).

[6] Riley v. National Federation of the Blind, 487 U.S. 781, 795-801 (1988).

[7] Kaplan v. California, 413 U.S. 115, 119 (1973).

[8] Texas v. Johnson, 491 U.S. 405. 410-11 (1974).

[9] Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557, 569 (1995).

[10] Wooley v. Maynard, 430 U.S. 705, 715 (1977).

[11] Pacific Gas & Electric Company v. Public Utilities Commission, 475 U.S. 1, 11 (1986)

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