The Masterpiece Cakeshop Oral Argument and the Fatal Flaw in the Bakers’ Free Speech Argument

Posted in: Constitutional Law

The culture wars have embraced the Masterpiece Cakeshop v. Colorado Civil Rights Comm’n case as an either-or proposition, and when issues are framed as either-or, suddenly both sides become equally weighted. For the culture war prism on this case: it’s either the evangelical or the same-sex couple; it’s religious liberty to carve out a space free of the Supreme Court’s holding in Obergefell v. Hodges (that same-sex couples have a constitutional right to marry) or civil rights for the couple. The culture wars, though, have a way of masking common sense.

This is a case of slippery slopes, and the vast majority of the argument featured the justices begging the parties for a bright-line rule that would make sense for future cases. Either sexual orientation and same-sex marriage are just another category like the existing categories in the public accommodations laws—race, gender, and religion—or they are somehow distinguishable. There was no heavens-parting answer to the question from the advocates: If the baker can refuse to bake cakes for a gay couple, why can’t he refuse based on race, gender, and religion? If the belief against same-sex marriage justifies a carve-out, what about the belief that all other religious believers are fundamentally wrong? Wouldn’t that mean that businesses could discriminate at will based on faith? Well, yes. Christians could exclude Muslims and Jews. These are unacceptable outcomes but that does not mean that the conservative members of the Court are not hell-bent on finding a way for the baker to discriminate here but not under those other categories.

Suffice it to say that the argument featured more smoke than clarity, except there were two moments on the part of the baker that shone light on what is fundamentally wrong with the baker’s argument to overcome the public accommodations laws.

Kristen Waggoner, arguing on behalf of the cake shop was pressed by Justice Ginsburg to identify why the cake shop has a speaking role at the wedding ceremony. Justice Ginsburg stated, “At a wedding ceremony, I take it, the speech is of the people who are marrying and perhaps the officiant, but who—who else speaks at the wedding?” Waggoner responded: “The artist speaks . . . It’s as much Mr. Phillips’s [the baker] speech as it would be the couples’.” (emphasis added). This is patent nonsense. A wedding is a ceremony, often a sacramental ceremony, where the speech and larger meanings are determined by the couple (and sometimes the families). The cake baker was not invited to the ceremony, indeed it was only the cake that they wanted, and the couple wanted it to express their love for each other. To say his so-called cake speech is on par with their speech at their private ceremony is beyond the bounds of reason. Their choice of a cake was their expression to each other and what the baker believes or not was simply beside the point. Here is how wedding cakes work: The couple wants a cake that looks like X, and then they can pour their own content into the cake they purchased.

The problem with this case, as is typically the problem in this era with free exercise and free speech arguments, is that there is constant slippage between the constitutional and the statutory, the public and the private. If the wedding were a public forum, under First Amendment theory, there might be some kind of argument for the baker, but it is emphatically a private ceremony where the couple has the absolute power to determine who speaks and what they say. The baker has no say on the meanings at the event, and it’s not just him. Neither do the chef, the hair and makeup artists, the dress and suit designers, the florists, on and on. In fact, these product suppliers are nothing but. Thus, the imposition of his views into their wedding space is offensive to the very concept of a wedding. On Waggoner’s theory, weddings are Towers of Babel, not coherent expressions of love crafted by a loving pair.

Therefore, the baker’s assertion that their purchase and use of his cake somehow implicates his beliefs is nonsensical. With all due respect, it really doesn’t matter what he believes. Waggoner was not the only advocate who inadvertently highlighted the fallacy of the baker’s argument in these cases. The solicitor general chimed in as well.

Of course, the Trump Administration could not miss out on another opportunity to weigh in against homosexuals, and so took a position for the baker and against the couple. Solicitor General Noel Francisco attempted to distinguish this case from all the other cases are inconsistent with the baker’s position, e.g., those involving a storeowner refusing to do business based on race, gender, or religion. He said that this case is unlike any other as follows: “[N]one of these Courts’ [sic ] cases has ever involved requiring somebody to create speech and contribute that speech to an expressive event to which they are deeply opposed.” A couple planning a wedding is not inviting the baker, florist, hair or makeup artist, dress or suit designer to “an expressive event” at all. Again, they are not invited! They are buying products to fit into their own expressive boundaries. So the “artists’” opposition to what might happen at that event is, again, irrelevant. They are not speakers at this event at all. They are product providers and under the law of public accommodation, they cannot choose to sell to some citizens and not others based on race, gender, religion, and, in Colorado, sexual orientation. The couple will attach its meanings to their products. If the couple can’t, the ceremony has been stolen from them by an outsider’s purposes, and, in this case, shamelessly politicized.

In a nutshell, my advice to the Supreme Court is to beware of turning private ceremonies into public fora. The justices should let marrying couples pour their chosen content into their own wedding ceremonies and not cheapen their choices by permitting a storeowner to claim that his personal meanings infiltrate their event. That means they should be able to buy any cake they want and then choose their own message for that cake without reference to the person who sold it to them. If the Court can hold the line there, it is possible that this one culture battle can end without destroying the institution of marriage.