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.

23 responses to “The Masterpiece Cakeshop Oral Argument and the Fatal Flaw in the Bakers’ Free Speech Argument”

  1. Pelican says:

    Ms. Hamilton, my husband and I build custom cars. Every car that leaves our shop has our name on it. We go to great lengths to make sure that the quality and performance is flawless. When the product of our labor goes out the door, it represents who we are, and speaks volumes to other potential customers. It does matter who built it, and it does matter who sees it. When a customer comes in with a piece of junk car and asks us to do something to it, we simply say no, sorry, but we will not perform any customization on a car that does not meet a certain standard. Now if the job has to meet a certain standard from a technical viewpoint, how much more important is it if the job has to meet a certain standard from a moral standpoint. Surely in this world of ‘relative morality’, the rule has to apply both ways.

    • cpatat says:

      Pelican, are you equating a gay marriage with “a piece of junk car?” Are you saying you refuse to perform customizations for gays? (What about blacks? Jews? Muslims?) That customizing cars for gays is immoral? That businesses should be able to apply some sort of moral fitness test to their customers? You’re not making much sense here.

      • Chantal Hall says:

        No, you completely missed the point. Everyone has standards to which they apply their everyday decisions, personal and professional. The point is that if what you’re being asked to do violates your standards, then no one has the right to force you to do it. Would you force a muslim caterer to host a pig roast? (I’d like to see you try) Then when he refuses… will you sue?

        • Joe Paulson says:

          The law regulates public accommodations and certain requirements are in place (including some degree of equal access for customers) even if it “violates standards.” If serving uncouth people violates my standards, the government is not violating my rights to say that if I run a public business that is not a good enough reason to not serve people.

          A basic regulation with long acceptance is equal access to customers, particularly based on their physical characteristics, religious beliefs and so forth. The “pig roast” analogy doesn’t work there. OTOH, if the Muslim caterer (or vice versa) didn’t want to serve a Jew …

        • Joe Paulson says:

          “Standards” is a rather open-ended way to argue for exemptions to government regulations, including anti-discrimination laws.

          The analogy is inexact. OTOH, yes, if I was a Jew and a Muslim caterer refused to serve me or a woman without a male guardian and a conservative Muslim refused to serve me, etc., a complaint to the proper civil authority would not be off base.

          Newman v. Piggie Park Enterprises, Inc. held that doing so for religious reasons (there racial discrimination) isn’t a good excuse.

          • Pelican says:

            Mr Paulson, I understand the government’s anti-discrimination laws prevent refusal of service based on certain criteria. I also understand this baker did not deny them service, but he did not want to customize their wedding cake which is the same as putting his signature (or brand, if you will) on it. Wedding guests will see the cake, and sometimes ask who the baker is, etc. It can definitely be construed as a stamp of approval. His conscience does not allow it. If government regulation can buldoze their way through religious boundaries, then we are no different than Russia or China where an individual is a subject to the state and their religion means nothing at all. In the case of the muslim who refuses to serve at a restaurant, one could argue there is no branding involved.

    • Joe Paulson says:

      If you think certain government regulations involved in your business results in lower quality products, do you have some right to skip over them?

      • Pelican says:

        Sorry, don’t mean to spam you, but to answer your question, if the government were to force us to accept every car that came through the door, then the only way to maintain our quality standards would be to charge exorbitant prices to fix everything, or, as you stated, the quality would be lower indeed, and the brand we worked so hard to build would be compromised.

  2. Marci, you misperceive the circumstances greatly, though it may not be your fault alone.

    The “wedding cake” plays no role at all in a wedding ceremony. Who speaks at a “wedding ceremony,” Justice Ginsberg inquires? Well, sure, the celebrants and the officiant. Possibly someone or more will sing, etc. But that the CEREMONY, yes, it is the speech of the celebrants and the officiant.

    I have attended a few weddings in my nearly 60 years.

    The wedding cake was NEVER EVEN PRESENT at the wedding ceremony. It was at the banquet hall or wherever the WEDDING RECEPTION was scheduled to take place.

    The correct question is, then, “Who speaks at a WEDDING RECEPTION?”

    The answer is, “a whole hell of a lot of folks.”

    The members of a reception line and those that pass through it speak.

    The best man often gives a toast, as will others.

    The musical guest/band will talk between songs.

    Attendees will chat as they sit at their tables and sample the dainties.

    And the cake, the wedding cake, it will be featured there and then, not in the wedding ceremony. And it will speak then.

    • cpatat says:

      Jim, of the cake doesn’t speak at the religious ceremony (the wedding), but only afterward at the reception, then the baker’s argument that supplying the cake violates his religious beliefs goes right out the window. By the way, I may not have been to as many weddings as you, but I’ve never heard the cake speak (literally or metaphorically), let alone knew who baked it. Heck, sometimes I never even got a piece of it.

  3. On top of that, nothing prevented the complainants here from buying a pre-existing cake that suited their needs, desires, or messaging. Instead, Marci, they were commissioning the creation of a previously NON-EXISTING cake. That difference is one with important distinction.

  4. Barry Kade says:

    In the freedom of speech context, which I believe is the correct one for this case, the baker’s oven is the printing press and the baker’s skill in carrying out the design wishes of the couple is similar to being a ghost writer.
    Let’s do hairstylist: Imagine if a heterosexual female went into a a conservative Christian’s hair salon and asked to be made to look like Lady Gaga. The response would be “Madame, I am an artiste. What you want is gross. I don’t do gross.” Now, would it matter if the customer instead was a drag queen? It is not who the customer is that is the cause for refusal, but what they want. In both cases. I am assuming that the bakers would sell an “off the shelf” cake if that had been requested, instead of a specialized design.

    • cpatat says:

      Barry, the gay couple wanted a cake. That’s what the baker makes for heterosexual couples. The gay couple didn’t ask for a gross or ugly cake, and the artisan baker didn’t refuse them for that reason. He refused them because they are gay.

  5. Brett says:

    The fact that the ceremony is private, and that the baker’s business is private is exactly why he has a right not to supply a cake, based on a Constitutionally-protected reason, the freedom of expression of religion. Where does the strong arm of the government stop? If a private baker must supply a cake against his legitimate religious beliefs (not based on a race or gender bias), then does that mean the government can force a Muslim Imam to perform a Christian wedding, or as the Solicitor General argued at the argument, must an African-American sculpture create a cross for the Ku Klux Klan to burn? Also, the baker refused to supply the cake depicting two men on it, and offered them anything else but they refused. I disagree with Ms. Hamilton’s premise that the design on a cake is not an artistic expression, and note that even liberal Justice Kagan seemed to agree during argument, stating “Some people might say that about cakes.” And indeed, a baker creating a cake with same-sex marriage images on it is promoting the message. Further, the gay couple did not argue that they were unable to obtain their desired cake image elsewhere. This is a case of the couple trying to force their views upon someone who disagrees with them based on his First Amendment right. As Justice Kennedy referred to during argument, where is the tolerance for the baker’s religious views?

    • cpatat says:

      Brett, the baker offers his services to the public. At my bakery, our religion requires that we not serve people who use religion as a smokescreen for bigotry. Hope that’s okay with you when we turn you away. At my restaurant, all the meals are artistically presented, and we don’t serve your kind, either. At my manufacturing plant, all of our products are artistic creations, and our religion requires that we not hire your kind. At my hospital, our religious beliefs don’t allow us to treat your kind. Do you see where your argument leads? Your “tolerance” leads to a result where everyone is an artist protecting their deeply held religious convictions, and everyone works and shops at their own church. Then along come people whose deeply held religious convictions require them to kill people who don’t agree with them, and we have to tolerate that, too. Don’t confuse freedom to worship as you please with freedom to discriminate in the guise of “free speech.”

    • E Hakenson says:

      Read the civil Rights Act of 1964 and learn the definition of a public accommodation.

  6. The Colorado theory would imply that myself, as I was a contractor, should not have the authority to refuse to build or bid on a job. The cake is not built, it is not a typical assembly line cake, the baker is asked, or as you would have us believe, can be ordered to build a special item, out of the ordinary, of special design and does not have the right of refusal or choice of what kind of work he wants to do. He did offer shelf type purchases as I understand just not specialty ordered items, or better put contract out his labor for that particular job. This may be OK as a ruling for a publicly funded state of federal worker within the guidelines of his work but not for a private business. There would be no difference in what is proposed than ordering a high school graduate to go into a certain type of work like it or not for the rest of their life or until an agent in charge decided to order a new line of work for them without the allowance for them to quite.
    Race in selling a house, the house is offered as a standard or several standards that the builder agrees to build. The agent in selling has to sell to whom ever qualify or has the cash. No problem, that is correct. The owner wants to have special changes after the fact, the same contractor may accommodate but does not have to, new job, new right to bid or not. That is correct procedure.
    Trucking company has a area where they supply service to commercial customers, a supplier calls for an order to go out to a commercial business in his coverage area, he takes it. The same customer wants to have a delivery taken to a residents, the trucking company could do it but declines as it is not in his typical type of delivery, he can build it right in but he decides not to. That is within his right as a private business.

    • cpatat says:

      Walter, no one has suggested the baker should have to go into a different profession. No one has suggested he should have to ship cakes out of the area. The fact of the matter is that services the baker offers to the public expressly includes making custom cakes. That’s what the gay couple ordered. What the baker argues, what you are trying to justify with inapt analogies, is that the baker should be able to refuse to provide the services and products that he offers to the public according to his own religious litmus test that he applies to each person standing before him. He’s always free to close up shop, but as long as he’s got his doors open to the public, then every member of the public should be treated equally.

      • The special design of the custom cake was directed by the Gay Couple, and he would have to give a price. How is that different from calling up any contractor and telling them they had to build your house? More to the core it is the right of every person to pursue the type of work they wish to do. This is not a right to have it given to them but a right to work towards if they so wish and to continue if they so wish. There are some works which may not be allowed but that is not allowed by all. Rights are the natural approval to obtain not a right to be given. Many seem to want all to labor, that is the socialist way, I would say that all have a right to work. Labor is a servitude work is something you attain and to subscribe to, in my opinion.

    • E Hakenson says:

      Owning a business is a privilege, not a right.

      • Joe Paulson says:

        I think owning a business is a right but it is one open to regulations. The corporate form is a sort of privilege with strings but “business” might be too broad there.

  7. E Hakenson says:

    THis court scares the daylights out of me! Seems like they are heading for a gay version of Separate but equal.

  8. Malcolm from GWR days says:

    Professor Hamilton has focussed on a point which I have found absent from the news reports of the case, namely, was the baker basing his refusal on the character of the product he was required to make or to the characters of the customers? I can see that if the two customers had asked for a cake with an inscription such as “Craig and David Together Forever”, or with two same sex figurines on it, he might well have objected to making such a product, in which case his religious beliefs should be respected: the law does not require any business to produce any and all kinds of products. On the other hand, if the customers had requested one of the bakers standard designs or with an equivocal inscription such as “Together Forever”, then it becomes clear that the baker directed his religious animus to the customers, which is impermissible. Further on this point, a hypothetical, suppose just one of the to-be-happy pair went to the shop and ordered a cake with such an indeterminate inscription, would the baker have made the cake without question or questioned the customer about the ceremony at which it was to be used or (horrors!) what his sexual inclinations were? And what would the baker have done if the customer in requesting an indeterminate cake had lied about the arena in which it was to be consumed?
    Perhaps the Court might need to remand the case for further fact finding if it is not already clear in the record.