Masterpiece Cakeshop v. Colorado Civil Rights Commission illustrates the tension between rules and results in legal reasoning.  This blog post will cover the difficulty of articulating a viable legal rule in Masterpiece Cakeshop.   I have previously blogged about the free speech and religious liberty arguments in the opening brief of Petitioners Jack Phillips and Masterpiece Cakeshop; the implications of Justice Gorsuch’s dissent in Pavan v. Smith on Masterpiece Cakeshop; and the line-drawing problems presented by this case.

Two weeks ago, the briefs of Respondents Colorado Civil Rights Commission and of Charlie Craig and David Mullins were filed.  Respondents argue that Masterpiece Cakeshop des not have a First Amendment right to refuse to bake a cake for a same-sex wedding.  Commercial entities, they argue, should not be permitted to refuse to sell a product to a customer because of that customer’s identity characteristics.   According to the Colorado Civil Rights Commission, “Phillips violated the [Colorado public accommodations law] because he refused to sell any wedding cake of any design to an entire category of customers.”

Respondents’ arguments are compelling.  If the Supreme Court accepts Respondents’ position, the Court will have to articulate a fair, coherent rule that accords with First Amendment precedent.  Respondents propose something clear: a seller cannot refuse to sell a product to gay couples if it would sell the identical product to straight couples.  Respondents focus on the selling, and argue that selling cakes is not speech, just like allowing military recruiters access to university campuses was not deemed speech in Rumsfeld v. Forum for Academic and Institutional Rights.  However, allowing a speaker access to one’s facilities is much less expressive than the act of baking a custom-designed cake, which Petitioners consider to be a form of art.  In their brief, Petitioners had argued that Colorado’s antidiscrimination law compels pure speech.  However, baking and selling a cake is less expressive than a parade or standing to salute the flag.  Neither Petitioners’ nor Respondents’ best cases lead to a legal rule that harmonizes with other, foundational First Amendment jurisprudence.  Both sides seem guided not by rules, but by results.

Constitutional law accounts for the “results” of a given decision in three main ways, some more legally appropriate than others.  First, the Supreme Court must ensure that the rule it articulates does not lead, by an extension of the rule’s logic, to results that contravene a fair reading of the constitutional provision at issue.  In Masterpiece Cakeshop, for example, the Court cannot decide the case based on a rule that anyone making a profit from speech forfeits his First Amendment protections.  That rule would be flatly inconsistent with the precedent, central to First Amendment jurisprudence, that newspapers enjoy First Amendment rights.   A broad rule based on profit motive would lead to absurd results, from a First Amendment perspective.  The Court also could not hold that if a state law (like Colorado’s antidiscrimination law) compels a speaker to produce a certain message, no reasonable onlooker would associate the message with the speaker.  That rule would negate the entire compelled speech doctrine.  Narrower rules must be framed, even if the profit-motive of Masterpiece Cake or the presence of antidiscrimination laws materially affect the outcome in this case.

Similarly, the Colorado Civil Rights Commission makes a morally, rhetorically, and legally compelling argument that, “when a business opens its doors to the general public, it may not reject customers because of who they are.”  This rule may work in Masterpiece Cakeshop, because Craig and Mullins had not yet specified what they wanted written on their wedding cake.  However, Colorado’s rule is question begging.  When are customers being rejected for “who they are,” versus for the message a sale represents?  Jack Phillips argues that he is happy to sell treats to LGBT couples, as long as he isn’t compelled to express congratulations for their wedding.  Colorado may have the better of the argument here – as long as a blank wedding cake isn’t inherently expressive – but the Court needs to consider the next case, when Masterpiece Cakeshop agrees to bake a cake for a same-sex wedding but refuses to write “Congratulations” on it.  Colorado argues here that if Phillips writes “Congratulations” on some cakes, it cannot deny that message on other cakes.  This would mean that Phillips could also be forced to write “Congratulations.  I respect your wedding,” if he would write this message on cakes to opposite-sex couples.   That result seems wrong, insofar as it does seem to compel speech.  The Court further needs to consider how whatever rule it articulates would impact wedding photographers, who arguably have a stronger claim that photography is expressive, and may indeed be pure speech.

According to the Colorado Civil Rights Commission, even if selling a cake is not simply conduct, it is not pure speech either. At most, selling a cake is expressive conduct.  Expressive conduct, like the burning of a Vietnam War draft card, may be regulated so long as the government’s regulation targets the conduct component (the destroying a draft card) not the speech component (the desire to express anti-war sentiment).  Flag burning statutes are unconstitutional because the government regulation is aimed at stifling anti-American sentiment.  A regulation on expressive conduct is permissible if the law (1) furthers an important interest, (2) that is unrelated to the suppression of expression, and (3) the restriction on any First Amendment freedoms is no greater than essential to further the important interest.  The struggle here, in formulating any rule, will be whether the government’s interest is unrelated to the suppression of expression.  The Commission has a good argument that its antidiscrimination laws foster economic equality, an interest unrelated to compelling expression.  However, to the extent the Commission argues that public accommodations laws preserve the dignity of a minority community, public accommodations laws are forcing a message of acceptance that may burden Masterpiece Cakeshop’s expressive rights.  This is especially true if the Commission allows bakeries to refuse to make cakes that contain some messages but not others.

The Court further accounts for the “results” of its decisions by ensuring that it does not create a rule that results in the violation of other constitutional rights.  As an example, the Court cannot articulate a rule on Masterpiece Cakeshop’s free speech claim that would, by logical extension, require religious leaders to participate in weddings that violate their religious beliefs.  Thus, any rule the Supreme Court creates on Masterpiece Cakeshop’s free speech claim cannot upset free exercise jurisprudence.  A broadly-framed rule that would, by logical extension, require religious leaders to officiate religious ceremonies that violate their beliefs would lead to absurd results, from a constitutional perspective.  The challenge for a Court that sides with Respondents will be to create a rule that, in some sense, compels Masterpiece Cakeshop (a religious bakery) to participate in a wedding without extending that logic to religious leaders.

The final way the Court looks to results in a given case goes beyond ensuring that the rule is logically coherent and conforms to precedent; the Court examines the broader policy implications of a rule.  In Masterpiece Cakeshop, a large concern of Respondents is that any rule that provides First Amendment cover for Jack Phillips to escape Colorado’s antidiscrimination law would invalidate as unconstitutional much of civil rights law.  A baker could deny service to a Jewish couple because he doesn’t wish to express pro-Jewish sentiment.  Any minority group’s civil rights could be trumped by free speech rights.  Antidiscrimination laws pertaining to public accommodations allow vulnerable minority groups equal access to the economy, and protect them from “the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.”  A rule that favors Petitioners could undo the myriad benefits of longstanding public accommodations laws.

This would be a bad result, and the Court cannot be blind to the policy implications of its decisions.  However, this final way of looking to results is the least valid form of legal reasoning; it is often simply outcome-based reasoning.  Courts do, to varying degrees, engage in this results-oriented method of rule-making.  Notably, in the Fourth Amendment context, scholars have criticized the Court for creating terrorism and drug-offense exceptions to our search and seizure protections.  A jurisprudence that honors constitutional law principles demands that the Court create sound, fair, coherent legal principles.  The outcome of Masterpiece Cakeshop must be driven primarily by legal reasoning, not socially desirable result – even if the Court would like to avoid a particular bad result.

Respondents’ briefs are excellent pieces of advocacy, but do not entirely alleviate the difficulty the Supreme Court will have in articulating a fair and coherent rule that avoids logically inconsistent or undesirable results.