Masterpiece Cakeshop and Jack Phillips have filed the opening brief in the much-publicized Masterpiece Cakeshop v. Colorado Civil Rights Commission.  This Supreme Court case will decide whether cake artist Jack Phillips had a First Amendment right to refuse to bake a custom-made wedding cake for the wedding of Charlie Craig and David Mullins.  I have previously blogged about some of the hard questions in this case.  I have also written about what Justice Gorsuch’s dissent in Pavan v. Smith forecasts about his vote in Masterpiece Cakeshop.

In this post, I will lay out what I believe to be Phillips’s most compelling free speech arguments, based on his opening brief.  In later installments in this series, I will discuss Phillips’s arguments based on the free exercise clause of the First Amendment.  After Respondents’ briefs are filed, I will cover the arguments that application of Colorado’s public accommodations law does not violate either the free speech or free exercise clauses of the First Amendment.  Once all the briefs are filed, I will begin to form my opinions about how the case should be resolved.

Masterpiece Cakeshop is an easily sensationalized case.   In what is being framed as a battle in the culture wars between gay rights and religious liberties, the implications may be enormous, and the symbolic force is even larger.   I want to focus instead on the legal doctrine and reasoning.  For those who feel strongly about courts’ adherence to the rule of law, coherent, satisfying reasoning — that honors both the breadth and limits of the First Amendment — should be as important, if not more important, than the result reached.

As background, Phillips’s refusal to bake a cake for the wedding of Charlie Craig and David Mullins violated Colorado public accommodations law.  The Colorado Anti-Discrimination Act prohibits discrimination, on the basis of several protected categories, by those who provide goods and services to the public.   At the courts below, Phillips disputed that he was discriminating on the basis of sexual orientation.  Phillips argued that he is happy to serve LGBTQ customers any of his other treats, and thus is discriminating not on sexual orientation, but on the conduct of getting married.  The Colorado Court of Appeals held that “the act of same-sex marriage is closely correlated to Craig’s and Mullins’ sexual orientation, and therefore . . . Masterpiece’s refusal to create a wedding cake for Craig and Mullins was ‘because of’ their sexual orientation, in violation of [Colorado’s public accommodations law].”  The Supreme Court must defer to Colorado’s interpretation of its own public accommodations law, but will resolve the federal constitutional questions of whether applying Colorado law in this case violates either the free speech or free exercise clauses of the First Amendment.

Masterpiece Cakeshop and Jack Phillips’s argument assumes the following legal structure: (1) Phillips’s custom-designed cakes, as art, are “pure speech.”  Forcing an artist to create cakes expressing a message with which he disagrees violates his right against compelled speech.  This argument is strong to the extent the Court believes that cakes are the same as sculptures, made with icing instead of marble.  At that point, compelled speech cases such as Wooley v. Maynard, where the Court held that Jehovah’s Witnesses cannot be compelled to display “Live Free or Die” on their license plates, would control.

The fact that Craig and Mullins were denied the ability to order a custom-designed cake before even specifying a message would not be relevant, if the Court deems wedding cakes inherently celebratory.   Indeed, after reading the opening brief, I wonder if there is a true distinction between specifying “Congratulations Craig and David” and creating a custom-designed wedding cake with no message on it.  The wedding cake, with its attendant ritual, is the congratulations.  In its opposition to certiorari, the Colorado Civil Rights Commission acknowledged that if Phillips had been asked to communicate a message about same-sex marriage, this case would raise different issues.  But, I wonder if there is a real difference between forcing Phillips to custom design a cake and compelling him to write “Congratulations!”  Just as Phillips cannot be forced to write “I hate gay weddings” on a cake he sells to the public, perhaps so too he cannot be forced to include so much of his unique artistic expression in a wedding ceremony he finds objectionable.

Lurking in these types of cases is the legitimate question of whether Phillips’s religion is simply a cover for LGBT discrimination.   Religion was also used as a basis for racial discrimination in the not-so-distant past.  For the purpose of analysis, the Court will likely assume that Phillips is acting according to his sincerely held beliefs.  He also does not create cakes for Halloween or work on Sundays, which costs him business.  And when the Colorado Commission ordered him to create cakes for same-sex wedding if he does so for opposite-sex weddings, he chose instead to forfeit a substantial amount of business, and fire workers, and stop designing wedding cakes entirely.

(2) At the very least, cake design is expressive conduct that deserves free speech protection.  Cakes, with their food preparation component and their artistic component, are part conduct part expression, just like burning the flag in Texas v. Johnson or burning a draft card in United States v. O’Brien.  Colorado’s ruling was based on the idea that a reasonable observer would not perceive Phillips as endorsing same-sex marriage simply by designing and selling cakes.

The Colorado Court of Appeals held that creating and selling cakes is not expressive conduct because it evidences no particular message.  Further, any possible message would be attributed to the customer, not the seller.  Phillips instead wants the Supreme Court to consider whether the cake itself is expressive, not the act of selling the cake.  The target of the legal inquiry of what must be considered expressive may greatly affect the outcome in this case.

The rationale of the Colorado Court of Appeals does create both circular reasoning and a paradox.  Essentially, the court of appeals also held that if the public accommodations law forces Phillips to express a message (by selling a wedding cake for same-sex marriages), no one will think his compliance with the law means he is expressing a message in favor of gay rights.  Thus, if the speech is compelled through Colorado law, it does not express a message, and it is not compelled expression.  This rationale is deeply unsatisfying because it would undo the compelled speech doctrine entirely.  If the law forces you to speak, it is not forcing you to speak, so you have no First Amendment protections.

There are no easy answers here.  The corporate identity of a speaker does not diminish First Amendment rights; newspapers and other artists who work for profit enjoy the same free speech rights as those who create for pleasure.  Some propose that any work based on commission should not be protected by the First Amendment.   This is appealing as a bright-line test to balance civil rights and civil liberties, but is not a workable solution doctrinally.  This solution would deny free speech protections to obvious cases where it is deserved, such as to fine artists, poets, and writers who work on commission for a paying source.  The Colorado Civil Rights Commission does not appear, from its brief in opposition to certiorari, to take this strong stance.  However, perhaps a cake, being expressive conduct, is different than a poem, although Phillips runs his business and even uses his whisk and paintbrush logo to indicate that he views himself as an artist.

(3) Because Colorado’s law prohibiting discrimination on the basis of sexual orientation in public accommodations burdens Phillips based on his viewpoint, the public accommodations law requires Courts to apply strict scrutiny – the highest constitutional scrutiny.  Strict scrutiny should apply, according to Phillips, even if cake baking is simply expressive conduct.  He argues that the public accommodations law does not survive strict scrutiny because the law is not necessary to ensure that the LGBT community has access to the economic marketplace.  Phillips himself offers many baked goods to customers regardless of sexual orientation; he wishes only to refuse to create custom designs expressing messages he does not condone.  Further, First Amendment rights cannot be sacrificed to dignitary interests without undermining the entire purpose of free speech liberties – to allow those with unpopular and offensive viewpoints access to civil discourse in public life.

Masterpiece Cakeshop and Phillips make some compelling arguments.  In this country, we cannot ban speech just because we believe the speech is discriminatory.  Other countries have banned the burqa, for example, as expressing a sexist message or a message of religion inconsistent with civic, secular life.  Our free speech traditions would never allow this.  As the opening brief notes: “The path to civility, progress, and freedom does not crush those who hold unpopular views, pushing them from the public square.”  In some sense, the Colorado law is about forcing Phillips to show his acceptance of something he does not accept.  Discriminatory conduct can be prohibited by state law, but speech that is offensive to certain groups cannot.  This case will thus turn on how much a wedding cake, designed in a custom-tailored way, is a message of acceptance versus an item in the economic marketplace.

The next post in the series — on the religious liberty arguments — is here.