I will now recount, as accurately as possible, a conversation I had with an excellent Uber driver, Rick, on Masterpiece Cakeshop. (Uber drivers are often extremely excited to discuss First Amendment law.) This conversation exemplifies some proper and improper ways of framing the case, which involves whether a Christian baker has a First Amendment right to refuse to make cakes for same-sex weddings.
Rick: So here’s what I don’t get about the case. I understand the potential First Amendment right of the baker, but where does the state get the right to force labor out of people?
EG: The state doesn’t need the right. The state has the power to enact any law that it wants, unless that law violates the Constitution.
Rick: Yes, but where does the state get the right to tell you what to do? To force labor out to you.
EG: So just like the state can tell you not to murder, it can tell you to do affirmative things, like pay taxes and serve people so that you don’t discriminate. The state has plenary power to do whatever it wants- it is only the federal government that has limited powers. The state can enact any law it wants, so long as it doesn’t violate the Constititon. So this case is about whether the state antidiscrimination law violates the Constituion.
Rick: I got it. So the state can force you to run a taxi service?
EG: Well, it cannot force you to run a taxi service, but if you run a taxi service, it can force you to not discriminate.
Rick: Okay. So back to the First Amendment.
EG: Now, there are two claims, the religious liberty claim and the free speech claim. The religious liberty claim is not great because you don’t have a constitutional right to exemptions from laws. Like, you can’t say your religion is cannibalism, so you deserve the right to murder people.
Rick: Well, I understand that, but here the state is forcing you to do something. Murder causes harm. But what if I am an Amish person, and I only want to serve Amish people? I should have the right to serve who I want. I am just not using my horse and buggy service for anyone but Amish people.
EG: Well, you may think that you should have that right, but the state has already decided that discrimination causes harm, just like murder. For many years, minorities couldn’t really eat at restaurants in certain places. Now, you might not like the state public accommodations law, because it forces people to do work to serve others. But the Supreme Court doesn’t decide if it likes the law; it simply decides if the law is constitional. The Supreme Court cannot undermine the democracy unless a law is unconstitutional.
Rick: I get why the state thinks antidiscrimination law is important. So the religious claim is bad?
EG: Well, Justice Kennedy thought there may be some basis for it because the state cannot show hate towards a religion or ban religious worship or prevent people from coming here based on religion. You don’t have to make religious exceptions, but you can’t treat a religion with hostility. Here, Colorado might have been actively hostile to religion. But the free speech claim is better.
Rick: I heard religious people cannot be forced to salute the flag.
EG: That’s right. No one can be forced [by the state] to salute the flag.
Rick: So we can force people to write something on a cake? Like, you can force a religious person to put a flag on a cake even though you can’t force them to salute the flag?
EG: Well, maybe you can’t force people to write something on a cake. But if a baker writes something on a cake for some people, he has to write it for everyone- gay and straight couples. Or maybe just the cake itself is speech and then you can’t even force the baker to make the cake. The law is- you can’t force people to put speech in a parade. But you can force universities to accept military recruiters.
Rick: Is that because the military is an arm of the state?
EG: Not really, but because giving access to the military isn’t speech. So the question is whether a cake is more like a parade or like allowing the military onto campus.
Rick: Well I don’t know. Is it only universities that receive federal funding?
EG: Yes, that gets into spending clause issues.
Rick: I once got a cake place to put “Happy f$&@ing birthday” on a cake for my wife. But years later, they wouldn’t do it for someone else.
EG: Well, they can change their mind.
Rick: Do you have a prediction?
EG: I think they’ll go for Colorado, or render a very narrow opinion for the baker that doesn’t really affect future cases. But this is a very big issue.
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