Symposium: Conscience, conditions, and access to civil society

Symposium: Conscience, conditions, and access to civil societyRichard W. Garnett is the Paul J. Schierl / Fort Howard Corporation Professor of Law at the University of Notre Dame. He joined an amicus brief with 33 other legal scholars in support of the cakeshop in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. It is striking how easy it has become for a […]

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Symposium: Conscience, conditions, and access to civil society

Richard W. Garnett is the Paul J. Schierl / Fort Howard Corporation Professor of Law at the University of Notre Dame. He joined an amicus brief with 33 other legal scholars in support of the cakeshop in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

It is striking how easy it has become for a person to stumble into the status of a symbol – or, these days, a viral meme. Jack Phillips is, or was until fairly recently, a skilled cake artist with a small business, Masterpiece Cakeshop, in suburban Denver. Today, he is a litigant in the Supreme Court of the United States and regarded by many as embodying the tension – increasingly, the conflict – between religious conscience and equality.

Phillips regards himself, justifiably, as an artist. He is resolved to living out his vocation as an artist in a way that reflects and respects his Christian commitments. In keeping with his understanding of those commitments, he declined to accept a commission to create a custom wedding cake for two men, Charlie Craig and David Mullins, who were planning a celebration of their wedding.

Phillips regularly provides his goods and services without regard to customers’ sexual orientation and he was willing to sell Craig and Mullins other goods, including a non-custom cake. Nevertheless, the Colorado Civil Rights Commission determined that he had discriminated based on sexual orientation in a place of public accommodation in violation of that state’s Anti-Discrimination Act. He was ordered to “cease and desist” such discrimination, to take various “remedial measures,” including retraining his staff, and to file “compliance reports” documenting all service denials and the reasons for them. As a result, and – as he sees it – rather than dis-integrate his creativity and his conscience, he stopped designing custom cakes and lost a substantial share of his business. The question before the justices is whether the commission’s order violates the First Amendment.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is an unusual case, but the conflict between the enterprises of promoting equality through anti-discrimination laws and respecting religious conscience by limiting the reach of such laws is real. It is also unavoidable and ineradicable, because of here-to-stay disagreements among people of good will about the meanings of equality, dignity and freedom and about the appropriate aims and reach of governments’ power.

Some try to deny or dissolve this conflict by prescribing a stingy understanding of religious liberty. Obviously, if it is decreed that “religious liberty” can never include a right to discriminate, then the conflict between religious liberty and anti-discrimination laws disappears. It is clear, though, that meaningful freedom of religion does include, sometimes, a right to decide or distinguish in ways that might otherwise violate such laws. The Supreme Court reaffirmed as much, a few years ago, in its (unanimous) ruling in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. Churches get to select their ministers and determine their memberships even if they draw lines in doing so. The issue, then, is not whether, but when and why, discrimination is sometimes protected religious exercise – or, as Phillips argues, artistic freedom.

Masterpiece Cakeshop presents the justices with a number of interesting First Amendment questions having to do with expressive actions, compelled speech, general applicability and religious neutrality, the relationship between status and conduct, and the purposes of public-accommodations laws. Even the Supreme Court’s quarter-century-old-but-still-awkward “hybrid rights” exception to the Smith free-exercise rule makes an appearance.

Along with a large group of legal scholars, I signed an amicus brief arguing that requiring Phillips “to use his artistic talents in a manner violative of his sincere religious convictions offends the vital constitutional commitment to freedom of expression.” This position finds strong support in one of the Supreme Court’s most famous First Amendment cases, West Virginia State Board of Education v. Barnette, in which Justice Robert Jackson wrote that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

Step back, though, just for a moment, from the Supreme Court’s First Amendment precedents and doctrines. There could be an additional way to frame the case and the questions it presents. Start with this: One of the (several) purposes of public-accommodations laws is to ensure efficient and equal access to housing, employment, education, opportunities – to citizenship and civil society. These laws limit the rights of property, contract, action and association to make sure that some people’s exercise of these rights does not prevent others from living and thriving in that middle space – the “public square” – between the purely private and public spheres. The scope and reach of public-accommodations laws are reasonably contested, but most people agree that access to commerce and employment should not be denied or complicated for invidious reasons or because of irrelevant considerations. No one’s admission to civil society should be conditioned on being or becoming someone else.

That said, benefits, opportunities, access and permission regularly come with conditions attached. They are parts and terms of the deal, the contract, the job. Student-loan funds, government research grants, occupational and professional licenses, public-works contracts, tax-exempt status, school accreditation, and on and on all (for better or worse) come trailing strings, regulations, requirements and constraints.

This is not surprising. Still, the power to condition access, or charge for admission, can – like all powers – be abused. The “rules of the road” should not be inefficient, irrational, irrelevant or unfair. It is fine to require passing a driving test as a condition for a driver’s license; it would be strange, though, to require passing a swimming test; and it would be wrong to require an oath of loyalty to the Bureau of Motor Vehicles clerk’s political party. It is fine to impose reporting requirements and privacy-protecting rules on hospitals receiving Medicare funds, but it is unnecessary and unjust to require those hospitals to provide elective abortions.

So, what about Jack Phillips and his Masterpiece Cakeshop? It is unremarkably and uncontroversially “part of the deal” that if he wants to be in the business of cake creation, he can be expected, and required, to pay employees at least a particular wage, to submit his facility and equipment to regular health-and-safety inspections, and to keep records for tax purposes. What’s more, almost everyone agrees that part of the price of admission to his vocation in the marketplace is that he not invidiously or irrationally discriminate in ways that deny or complicate others’ access. Can he be required, though – should he be required, is it necessary for him to be required – to say something he thinks is not true, to disavow what he believes or to act expressively in violation of his conscience?

Some say that requiring Phillips to participate creatively, but unwillingly, in the celebration of a legal marriage is no different than requiring someone who has accepted employment as a firefighter to fight fires. He can, after all, leave the wedding-cake business. But to condition the lawful exercise of his chosen profession on the waiver not only of unfettered freedom of contract but also of the First Amendment right to express – or not – his religiously informed views seems to ask too much. Such a demand crosses over from ensuring access to imposing orthodoxy, from enriching civil society to homogenizing it.

The commission’s defenders argue that Colorado’s condition is necessary to prevent dignitary harms to those whose wedding Phillips refuses to celebrate and to condemn, in the community’s voice, what they regard as his unsound, even offensive, views. It is not clear, though, that our governments have a strong interest in protecting people from the indignity of being offended by disagreement or wounded by disrespect. What’s more, Phillips’ dignity is also at stake, because the official actions against him in effect label as public heresy his conscientious dissent. It is not necessary, in order to accomplish the primary purposes of public-accommodations laws, to condition Phillips’ practice of his craft on an affirmation he cannot in good conscience make and on checking his First Amendment rights at the door of civil society.

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Symposium: Commercial products as speech – When a cake is just a cake

Symposium: Commercial products as speech – When a cake is just a cakeMary L. Bonauto is the Civil Rights Project Director at GLBTQ Legal Advocates & Defenders. This case is not really about a cake. It is about equal citizenship of gay people, and whether we may engage in the kinds of ordinary transactions others take for granted in the commercial marketplace and beyond. Will moral objections […]

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Symposium: Commercial products as speech – When a cake is just a cake

Mary L. Bonauto is the Civil Rights Project Director at GLBTQ Legal Advocates & Defenders.

This case is not really about a cake. It is about equal citizenship of gay people, and whether we may engage in the kinds of ordinary transactions others take for granted in the commercial marketplace and beyond. Will moral objections to who we are and whom we love be accorded constitutional supremacy over ordinary human decency, over the Golden Rule, over the long-standing American rule of businesses dealing with all comers? Will these objections justify closing the door on LGBT people and, once again, marking them – including the youth who had begun to hope that they could live a full life – as outcasts and inviting further discrimination?

To circumvent the demands of equality, both Masterpiece Cakeshop and the Department of Justice as amicus seek to draw new constitutional lines about speech in the marketplace – either as “pure speech” or “expressive conduct” – because of the personal creativity that can be involved in making products for sale or providing services. A wedding cake is “not an ordinary baked good; its function is more communicative and artistic than utilitarian,” the government writes.

But exempting businesses from anti-discrimination laws based on personal creative efforts in making a product or providing a service creates a massive hole in those protections. Throughout our existence, humans have used their hands to design, cut, shape and mold products, whether with clay, stone, cloth, metal or edible substances. Earning a living from the sweat of one’s brow coexists with human creativity, with the passion for cutting hair or cooking food, with designing and sewing clothing – with making something both functional and beautiful. Uplifting the dignity and creativity in all work, Dr. Martin Luther King spoke of the “street sweeper” who could “sweep streets like Michelangelo painted pictures; sweep streets like Handel and Beethoven composed music; sweep streets like Shakespeare wrote poetry.” Studs Terkel’s 1970s classic “Working” speaks to the human drive to act and create distinctively, even in mundane tasks, and how the inability to do so feels like imprisonment. And yet we have never equated the human creativity involved in producing a myriad of products and services for public sale as grounds for denying the sale of those products or services to a class of customers because of who they are.

The cakeshop’s counsel says the bakery’s owner “intends to, and does in fact, communicate through” the cakes the bakery sells. However, most of us would think that the message of a special occasion or celebration is the message of those marking the occasion – those celebrating – who plan and even choreograph their event, and know what and why they are celebrating. Not just the baker, but all vendors are the conduits for the celebrants’ expression. Even a student should understand that. But inherent in the cake, the cakeshop says, is the baker’s personal message that a marriage has occurred and should be celebrated, something that is sacrilegious to him in the case of same-sex couples’ marriages.

We do not impugn the baker’s beliefs by remarking on the astonishing breadth of that claim. We have never thought that a bakery takes a position one way or another when making and selling a cake to celebrate a wedding, bat mitzvah or first communion, a baby shower or a birthday celebration. Under the test advanced by the cakeshop and DOJ, a bakery could refuse an order for a baby-shower cake when a married same-sex couple is expecting their first child because the baker believes this birth should not be celebrated, and that a same-sex couple should not be the child’s parents.

The cakeshop claims a willingness to sell “pre-made” products to gay people, but wouldn’t the proposed rule allow a bakery to refuse any cake order for same-sex couples because serving them could be construed as showing support for them as they reach milestones in their shared lives? Under that rule, a copy shop could refuse to print birth announcements for same-sex couples, and a funeral home could deny funeral services to a same-sex spouse, as one did not long ago. For this and other reasons, the status (being LGBT) versus conduct (marrying) distinction the cakeshop relies on is chimerical. Gay people marry other gay people, and a new, constitutionally-based objection to conduct and marriage could be wielded far more broadly.

Looking beyond this case, it is clear that although the present controversy may focus on marriage and same-sex couples, if the Supreme Court were to accept a rule that simply providing commercial goods or services conveys a message of approval and endorsement that cannot be compelled, then public-accommodations protections will evaporate and many will suffer. Would vendors who sew gowns, design place-setting graphics, perform music, cater the food or decorate the wedding limousine have free rein to deny wedding services to Jewish and Muslim couples who do not accept Jesus Christ as their lord and savior, to Christians who do, and to those customers lacking any faith at all? Whether a product or service is wedding-related or not, if its production, sale or delivery is seen as freighted with messages of approval and endorsement, then many or most places of public accommodation can be swept in.

Faced with the real threat that businesses will be emboldened to deny service beyond the facts of this case, we know only that DOJ (rightly) believes “eliminating private racial discrimination” is a sufficient interest to justify application of a public-accommodation law to an objector. Many of us would have hoped that DOJ would recognize that gender, religion, national origin and sexual orientation are also important interests, as do many state legislatures. Yet the federal government has all but stated that preventing harm to gay people is barely an interest at all.

Nor is there any reason to think that this rule would not reach all civil-rights laws. Why, for example, would laws prohibiting sex discrimination still foreclose a male business owner from refusing to hire women, married or unmarried, if his religion instructs him that they should be at home and not in the workforce, or if he asserts that requiring him to hire women would express something contrary to his beliefs? And what of the landlord who renovates and rents apartments?

To support its argument that requiring a baker to make a wedding cake is compelled speech, DOJ maintains that each product has a life of its own that carries messages of its originator, who may therefore be seen as compelled to “literally” or “figuratively” participate in the event when they have made a product “that performs an important expressive function in the ceremony.” The cakeshop and DOJ rely heavily on Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston and Boy Scouts of America v. Dale. But a for-profit business open and selling goods to the general public is neither a private parade marching to make a point, like the veterans groups organizing the St. Patrick’s Day parade in Hurley, nor a private association like the Boy Scouts, and the government can regulate businesses like the former in a way it cannot regulate the latter.

If a product does not express a particular, discernible message, or is understood not to be the vendor’s speech, the cakeshop’s compelled-speech-and-expression claim simply fails. To repeat: When a couple buys a wedding cake, it is for their wedding, their celebration, and everyone knows it is their messages that are communicated by their event and its trappings. “Customizing” products and services for events is typical because customers of all kinds want their events to feel special, to be their own. Indeed the cakeshop acknowledges that before designing a cake, a store representative “meets with the couple to learn their desires, personalities, preferences, and wedding details.” Why – other than to be sure that the cake conveys the couple’s beliefs, ideas and messages? How then can the cakeshop ask the Supreme Court to regard the cake as the embodiment of its owner’s personal beliefs and a distinct message of approval for the customers and their celebration? When all is said and done, a beautiful cake remains a cake. And discrimination remains discrimination.

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Symposium: Anti-discrimination laws do not compel commercial-merchant speech

Symposium: Anti-discrimination laws do not compel commercial-merchant speechTobias Barrington Wolff is Professor of Law at Penn Law. He served as lead appellate counsel for Vanessa Willock in Elane Photography, LLC v. Willock, in which the Supreme Court declined to review a ruling by the New Mexico Supreme Court that a photography studio violated the state’s anti-discrimination laws when it refused to photograph […]

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Symposium: Anti-discrimination laws do not compel commercial-merchant speech

Tobias Barrington Wolff is Professor of Law at Penn Law. He served as lead appellate counsel for Vanessa Willock in Elane Photography, LLC v. Willock, in which the Supreme Court declined to review a ruling by the New Mexico Supreme Court that a photography studio violated the state’s anti-discrimination laws when it refused to photograph a same-sex commitment ceremony.

One question lies at the heart of the First Amendment argument that Masterpiece Cakeshop is advancing before the Supreme Court: When a customer buys goods or services from a business that operates in the general marketplace, whose message (if any) is communicated by the item or service? Masterpiece’s argument depends on the proposition that the company, and not the customer, is the speaker who owns the message. If that proposition fails, then the speech clause plays no role in this case. And as I will explain, that proposition does fail.

To start, we must take stock of how a public-accommodation law operates. Anti-discrimination laws are content-neutral, as First Amendment doctrine uses that term. They do not target particular messages or expressive acts, and they do not regulate with reference to the content of expression. Neither do they target only businesses that sell goods and services that include some creative or artistic element. On its face, an anti-discrimination law like Colorado’s has nothing to do with expression. Rather, the law targets commercial conduct: the decision whether to do business with a customer, and the act of discriminating against customers when turning them away.

Commercial entities do not receive special exemptions from commercial regulations simply because the goods or services they sell have an expressive component. Law firms and private schools, for example, have tried and failed to argue that the First Amendment shields them from federal anti-discrimination law. This is so despite the fact that the services they provide involve the creation of expressive work product. That fact is certainly relevant in some settings. If government sought to regulate the content of their work product directly — prohibiting law firms from making arguments that challenge the constitutionality of government programs or telling private schools what ideology they must promote in the classroom — then the First Amendment would be directly implicated. But when government tells a law firm that it may not discriminate against women in hiring and promotion, or tells a private school that it may not discriminate against black students in deciding who is eligible to enroll, both are being subjected to general regulations of commercial conduct and the First Amendment is not implicated. Discrimination in the marketplace “has never been accorded affirmative constitutional protections.

Masterpiece Cakeshop and other businesses have insisted that the goods and services they sell involve expression that is entitled to First Amendment protection. That both is true and proves nothing. Wedding photography, cake design and flower arranging do involve artistry, and that fact would protect practitioners from having the government regulate the artistic content of their work product just as it protects law firms and private schools from such content-based interference. That fact does not exempt photographers, cake designers or flower arrangers — or lawyers, or private schools — from following generally applicable commercial regulations including those relating to discrimination against employees or customers.

To circumvent this obstacle, the lawyers for Masterpiece Cakeshop have sought to frame their arguments as compelled speech. Even if an anti-discrimination law is content-neutral, they say, the law compels involuntary expression when applied to a business that sells made-to-order goods or services involving artistic skill. They argue that the creative or artistic content of their products gives these businesses a right to turn away any unwanted customer.

To determine whether this argument has any substance, we must distinguish between two lines of cases in the Supreme Court’s compelled-speech doctrine. In the first line of cases, the court has treated with particular disfavor any attempt by government to select a favored message and compel involuntary speakers to affirm or host that message. In West Virginia State Board of Education v. Barnette it was the pledge of allegiance, which the state required students to recite in school. In Wooley v. Maynard it was a patriotic motto, which the state required drivers to carry on their license plates. In Miami Herald v. Tornillo it was the response of a political candidate to unfavorable newspaper coverage, which state law required the newspaper to publish on its pages. In Pacific Gas & Electric Company v. Public Utilities Commission of California it was the newsletter of an environmental group, which state regulators required a utility company to bundle with the bills it sent its customers. In each case, government selected a favored message and mandated its dissemination. Barnette and Wooley involved the government’s own message. PG&E and Tornillo involved the message of a private speaker chosen because of its viewpoint. All involved the compelled affirmation or dissemination of a specific message chosen by government. Despite many other differences among these cases and room for disagreement about how some were decided, this basic fact lay at the foundation of each ruling.

Public-accommodation laws lack this quality altogether. Colorado has not selected a favored message and mandated its dissemination. The Colorado Anti-Discrimination Act and laws like it simply say to businesses, “Whatever goods you sell or services you offer, you must do so without discriminating against these classes of people.” The difference is fundamental. This line of cases is about prohibiting compelled orthodoxy and preventing government from conscripting unwilling people to disseminate a favored viewpoint. Masterpiece Cakeshop is neither being subjected to compelled government orthodoxy nor made the involuntary billboard for a government-chosen message.

The second line of cases relates to individual acts of expression. When a person is speaking in her own voice, engaged in expression that is invested with her own identity as a speaker, the speech clause grants her the right to control the content of that message free from government mandates. This interest, too, was at stake in Barnette, where the message chosen by the state was required to be affirmed by each individual student with a salute signifying the solemnity of the pledge. In subsequent compelled-speech doctrine, this interest has most clearly controlled the result in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston.

Hurley held that the application of a Massachusetts anti-discrimination law to a privately organized parade was a violation of the speech clause. Unlike in Barnette, Wooley, Tornillo and PG&E, the government was not mandating that anyone affirm or disseminate its chosen message. The Massachusetts law said nothing about messages. It simply required equal access to public accommodations. But the state court interpreted “public accommodation” to include a private expressive event. The Supreme Court found that this unusual extension of the public-accommodation law violated the First Amendment.

The cornerstone of Hurley was the Supreme Court’s conclusion that a parade is inherently expressive, meaning that it serves as a vehicle for communicating the message of the private parade organizer to a larger audience. Any requirement that the organizer allow unwanted parade units to march was thus a requirement that the organizer change the content of a message that he was presenting to the world as his own. It was precisely this concern that the Hurley court sought to isolate when it called a parade “inherently expressive.” The term does not simply indicate that a parade includes content that implicates the First Amendment, it indicates that a parade is an act of personal expression akin to giving a speech on a street corner. Indeed, the street-corner speaker is another trope that the Supreme Court invoked in Hurley to explain its holding. The organizer orchestrates parade units to craft his own message (whether about Irish pride or anti-government protest) and performs that message for a public audience. He is a street-corner speaker. He simply uses a different idiom to convey his message.

A business is not acting as a street-corner speaker when it sells goods and services to the general public. When a customer hires a merchant, it is not paying for the privilege of disseminating the merchant’s personal message. To be sure, some merchants provide a good or service that involves creative or artistic skill. But any message they produce as a consequence is a message chosen by their customers. Imagine a wedding photographer showing up at a customer’s wedding and saying, “Here is how you must structure your ceremony. Here is what you must say. This may be your wedding, but I am taking the pictures, so this is my message and I get to control its content.” That is not the relationship that businesses have with their customers when they sell goods and services. Hurley does not apply to commercial transactions in the public market.

Some business owners are offended when told that the skills they sell to the general public may not be refused to gay customers. But the First Amendment is not a general license for people to avoid requirements they find objectionable. Public-accommodation laws do not regulate the content of expression. They do not single out a favored message and require people to affirm or disseminate that viewpoint. And they do not hijack a street-corner speaker and demand that he include unwanted content in his private expression. The speech clause poses no obstacle to prohibitions on discrimination in the public market.

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Symposium: As a matter of marriage law, wedding cake is expressive conduct

Symposium: As a matter of marriage law, wedding cake is expressive conductHelen Alvare is a professor of law at Antonin Scalia Law School, George Mason University. Many advocates have written about why a wedding cake is itself constitutionally protected expression. This proposition is clearly true based upon common knowledge about the processes involved in wedding cake design and decoration. Less has been written, however, about how […]

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Symposium: As a matter of marriage law, wedding cake is expressive conduct

Helen Alvare is a professor of law at Antonin Scalia Law School, George Mason University.

Many advocates have written about why a wedding cake is itself constitutionally protected expression. This proposition is clearly true based upon common knowledge about the processes involved in wedding cake design and decoration. Less has been written, however, about how the cake might be “expressive conduct” under the standards of Texas v. Johnson, although the brief for the petitioners in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission refers to the cake as the “centerpiece” of an “inherently celebratory event.”

There is another, more obvious way, however, to understand the wedding cake as expressive conduct: Wedding cakes in every case celebrate an event and a union that are by law and not merely by custom, expressive. This is because long-established marriage law, adopted in every state, explicitly endorsed by the Supreme Court, and resoundingly affirmed in Obergefell v. Hodges, holds that marriage is never just a private contract between two people, but always also a “status” – bestowed and contented by the state, and by the interaction of law with social norms and meanings.

According to this law, marital “status” is the legal and social recognition that the marital union is specially favored because it forms the “keystone of the social order,” is the most favorable and stable place for sexual expression and childrearing, and is a public sign of fidelity, permanence, maturity and social responsibility. It is because state-recognized marriage legally possesses and communicates such a status that over a thousand state benefits flow to it, and myriad obligations attach to it as well.

Advocates for same-sex marriage relied heavily upon the fact that marriage is a public, expressive status in arguing for a constitutionally recognized right. Obergefell accepted their argument entirely, and added that the celebration and existence of state-recognized same-sex marriage automatically communicates additional legal and social meanings. For example, Justice Anthony Kennedy wrote that state-sanctioned same-sex marriage communicates the perfect equality of same- and opposite-sex married unions – that is, between procreative and nonprocreative intimate pairs, and between households in which children know their natural parents and households in which they will inevitably be separated from their natural mother or father or both.

By law, from the moment a couple enters into a marriage contract until the end of the union, marital status attaches certain legal rights and obligations to a couple and communicates myriad social meanings (although, within limits, the couple can alter various property or financial rights via, for example, a prenuptial agreement.). Consequently, to force a baker to make the cake that always celebrates these rights, obligations and messages is to force expression contrary to his First Amendment rights.

Below, I treat briefly the legal tradition of marriage as a public status, same-sex marriage advocates’ and the Supreme Court’s reliance on this tradition in Obergefell, and the intersection of marital status with the right of free expression.

Perhaps the most famous articulation of marriage as a social status is the Supreme Court’s Maynard v. Hill decision, relied upon heavily in Obergefell. The Maynard court noted that every state attaches myriad “obligations and liabilities” to the marriage contract because the public has a “deep[] interest[]” in marriage. This is because marriage is the “foundation of the family and of society, without which there would be neither civilization nor progress,” the relationship that is “the most important, as affecting the happiness of individuals, the first step from barbarism to incipient civilization, the purest tie of social life, and the true basis of human progress.”

States’ valorization of marriage can be understood more clearly by comparing the benefits and positive connotations associated with marriage to the situations of cohabitation, dating and nonmarital sex. As the Massachusetts Supreme Judicial Court opined in Goodridge v. Dept. of Public Health, marriage is legally and socially associated with responsible sexual expression and childrearing, and the capacity for sacrifice, fidelity and permanence. Marriage is also the predicate for over a thousand government-conferred benefits. Cohabitation, dating and nonmarital sexual partnerships, on the other hand, confer almost no such benefits and are not legally or socially linked with any of these advantages. This is why same-sex marriage advocates were not satisfied to remain at the level of cohabitants or unmarried intimate partners.

Same-sex-couple plaintiffs relied heavily and repeatedly upon the intrinsic legal and social meanings of marriage in their bid to obtain a constitutional right to same-sex marriage. They opened their brief before the Supreme Court in Obergefell with the statement that the very purpose of same-sex marriage is to “seek[] a cherished status.” They asserted that legal same-sex marriage “confers” “dignity and status,” while the refusal of legal marriage communicates “indignit[y].” They asserted that legal marriage has communicative powers from the time it is contracted, throughout the everyday lives of the parties and their children, and even after the death of a spouse, lamenting the “hurt[]” caused by Ohio’s failure to recognize a same-sex spouse on a death certificate.

Obergefell fully embraced the notion of marriage as an intrinsically expressive status, adding that same-sex marriage conveys additional meanings. Justice Anthony Kennedy’s opinion affirmed that marriage is understood as a privileged place for intimate association, is associated with the right to bring up children, and is the “keystone of the social order” as well as the “foundation of government.” He added that marriage “embodies the highest ideals of love, fidelity, devotion, sacrifice and family” and is thus the favored “status for over a thousand provisions of federal law,” which offer “symbolic recognition and material benefits to protect and nourish the union.”

Justice Kennedy’s opinion further recognized that same-sex marriage communicates additional meanings. It serves as a means by which gay and lesbian persons “define and express their identity” to the larger society. And it expresses that there is no difference between same- and opposite-sex unions, including with respect to parenting. Because he understood marital status as inherently communicative, Kennedy added that a refusal to grant it to same-sex couples communicates stigma and would “disparage [same-sex couples’] choices and diminish their personhood.”

Thus, whether or not the vendors or even the affianced couple participating in a marriage ceremony agree or disagree with the messages conveyed by marital status, a state-recognized marriage communicates those messages. And a wedding cake in every case celebrates what the state-licensed marriage expresses. It is expressive conduct.

But the Constitution forbids the state from compelling a citizen to endorse what he or she does not believe, by “word or act.” As the Supreme Court held in West Virginia State Board of Education v. Barnette, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” This principle has been upheld in cases (such as Pacific Gas and Electric Co. v. Public Utilities Commission and Wooley v. Maynard) in which the complainant was not being asked personally to endorse the expression at issue. And, as argued in the amicus brief I have joined with 33 other legal scholars, it is not enough to tell the unwilling “confessor” that everyone will understand they were coerced, or that they can express their disagreement in some other fashion. This would be the equivalent of telling the Jehovah’s Witness school children in Barnette that they should “[j]ust salute the flag and recite the Pledge – everybody will know that you were forced to do it, and that you don’t really mean it – and then explain to your friends and classmates what your real beliefs are.”

The Supreme Court has robustly protected citizens’ rights respecting the freedom not to be associated with another’s message. In Hurley v. Irish-American Gay, Lesbian, and Bisexual Group, the positions of the parties were reversed as compared with Masterpiece Cakeshop, but the principle set forth in Hurley is equally applicable here. In Hurley, the speaker – the parade – did not wish to be associated with the message of a group wanting to communicate “gay pride.” The speaker was permitted to exclude the group. In Masterpiece Cakeshop, the speaker — the baker – does not wish to be associated with – in fact, to celebrate – the inherently expressive event of a state-recognized same-sex marriage. He must be permitted to withhold participation. Hurley’s holding applies equally to both situations: “[A] speaker has the autonomy to choose the content of his own message.”

The Supreme Court should appreciate the irony of the same-sex couple’s position in Masterpiece Cakeshop. The plaintiffs in Obergefell rode to the establishment of a constitutional right to same-sex marriage on the back of the idea that “marriage” is an intrinsically and loudly expressive status in American law and society. That to have this status expresses as nothing else can the full equality and dignity of same-sex individuals and couples, and is a resounding statement that there is no difference between procreative and nonprocreative unions, or households facilitating children’s linkage with their natural parents and those inevitably severing it. That to be denied marital status communicates the worst kind of social stigma, indignity and scorn.

In this and similar cases against vendors’ rights of free expression, however, same-sex couples must repudiate this entire line of argument, and insist instead that a same-sex marriage ceremony and marriage have no expressive function whatsoever. The Supreme Court should not permit them to have their cake and eat it too.

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Symposium: Disentangling free speech and freedom of religion in Masterpiece Cakeshop

Symposium: Disentangling free speech and freedom of religion in <em>Masterpiece Cakeshop</em>Eric Segall is the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law. Jack Phillips, the co-owner of Masterpiece Cakeshop, refused to sell a wedding cake to a same-sex couple because supporting their wedding violated his religious beliefs. The couple filed suit in Colorado state court, arguing that a Colorado […]

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Symposium: Disentangling free speech and freedom of religion in <em>Masterpiece Cakeshop</em>

Eric Segall is the Kathy and Lawrence Ashe Professor of Law at Georgia State University College of Law.

Jack Phillips, the co-owner of Masterpiece Cakeshop, refused to sell a wedding cake to a same-sex couple because supporting their wedding violated his religious beliefs. The couple filed suit in Colorado state court, arguing that a Colorado civil-rights law required Phillips to provide his services to all customers regardless of their sexual orientation. Phillips responded that the free speech and free exercise clauses of the First Amendment to the United States Constitution prohibit Colorado from enforcing its civil-rights law against him under these circumstances. He argued that he is a wedding-cake artist, and that the state can’t force him to express a message (support of same-sex weddings) that he does not want to communicate because of his religious conscience.

The Supreme Court held in Employment Division v. Smith that the free exercise clause of the First Amendment is not violated by generally applicable laws not specifically directed at religion even if those laws substantially burden the ability of people to exercise their religion. Phillips does not argue, and could not argue, that Colorado’s anti-discrimination law was passed with the intent to burden religious practices. Furthermore, unlike many states, Colorado does not have a Religious Freedom Restoration Act that might provide statutory redress to people who believe that neutral laws substantially burden their religious exercise.

The Supreme Court has also held, however, that even a religiously neutral law can violate the free exercise clause if the real object of the law is to disfavor religion or if the law as implemented by the state discriminates against religion. This case, Phillips contends, falls into the latter category, because the Colorado Civil Rights Commission allowed other bakers to refuse to sell cakes to customers who wanted anti-same-sex-wedding messages on their cakes. Although the commission held that the other bakers’ refusals were based on the offensiveness of the message, not the identity of the customers, Phillips argues that the commission applied its civil rights law on a religiously discriminatory basis. According to Phillips, the state has “selectively applied” the civil rights law to “artistic and expressive professionals who have religious objections to same-sex marriage,” while allowing other expressive professionals to refuse customers who want to express anti-same-sex-marriage messages.

The Supreme Court should rule against Phillips on his free-exercise-of-religion claims because the commission’s actions were not directed at his religious beliefs or practices but rather at his refusal to sell his commercial product to customers based, in the commission’s view, on the customers’ sexual orientation. Even if the commission is preferring some messages (pro-same-sex marriage) over other messages (anti-same-sex marriage), in a way that might violate the free speech clause of the First Amendment, such disparate treatment does not convert Colorado’s religiously neutral civil-rights law into a law that unconstitutionally burdens the free exercise of religion or one that discriminates against Phillips because of his religion.

The commission would have applied its law to any “artistic professional” who rejected the business of a same-sex couple because of objections to same-sex marriage, regardless of whether those objections were religiously based. Similarly, the commission allowed “artistic professionals” to refuse customers who wished to express what the commission agreed were “offensive” anti-same-sex-wedding messages, regardless of the religious or non-religious nature of those messages. The commission’s distinction is between offensive and non-offensive messages, not between religious and non-religious messages. That distinction might raise free-speech concerns, but it has nothing to do with religion.

There are important reasons the Supreme Court should carefully distinguish between Phillips’ speech and religion claims. Non-discrimination laws promote compelling governmental interests in fighting inequality and unlawful discrimination. Colorado and numerous other states have made it illegal for businesses to refuse to provide their services to potential customers based on race, gender, national origin and, in Colorado’s case, sexual orientation. It wasn’t that long ago that Americans who ran businesses and schools used their religious beliefs to justify discriminating against African-Americans. Discrimination in the provision of secular services based on religious belief is still discrimination, and does not deserve constitutional protection.

Phillips’ free-speech claims, however, raise wholly different issues and concerns. He alleges that the custom cakes he makes for weddings are expressive, and that the government cannot force him to adopt a government-required message. It seems clear that a pro-life baker could not be forced by the state to provide a cake for a Planned Parenthood office party with the inscription “Pro-Choice.” Whether Phillips’ wedding cakes are communicative enough to warrant similar protection, or whether Colorado’s interest in fighting discrimination against gays and lesbians is compelling enough to override that protection, are difficult questions, but they relate exclusively to free speech, not religion.

Phillips also relies on largely discredited dicta in Smith pertaining to the so-called “hybrid-rights” doctrine to bolster his free-exercise claim. He argues that his speech/religion claims are entitled to strict scrutiny (the most rigorous test in constitutional law), because his free-exercise claim is linked to his arguments about forced expression.

Phillips’ attempt to bolster his religion claims by linking them to “communicative activity” fails for several reasons. As Phillips concedes, the Colorado Court of Appeals expressed doubts about the “validity” of the hybrid- rights doctrine, and the Supreme Court has never offered a blueprint for how the doctrine should be implemented. Many scholars have suggested that the hybrid-rights doctrine should be limited to the facts of Smith or abandoned altogether. The hybrid-rights theory has also created much confusion in the lower courts, which have reached different conclusions about how and even whether to apply it. The court should use this case to discard this highly criticized and dubious doctrine.

Phillips’ forced-expression claims add nothing to his claims of religious discrimination. The Colorado Civil Rights Commission did not care about Phillips’ religion, nor did it make a decision based on his religion. Just like all other wedding-cake bakers, Phillips may exercise his religion any way he wants to other than refusing to serve customers based on their sexual orientation. The free exercise clause has nothing to say about Colorado’s religiously neutral desire to prohibit sexual-orientation discrimination by Colorado sellers of commercial products. The fact that, quite apart from his religion claims, Phillips may also have viable free speech claims does not imbue his religion claims with merit.

Phillips did not want to endorse same-sex marriage by selling a wedding cake to a same-sex couple. The reason or motivation for his refusal – that providing the cake violated his faith – is irrelevant to the constitutional merits of his free-speech claims. If Phillips has a federal constitutional right to refuse to sell his wares under these facts, so would anyone else who objects to same-sex marriage, for any reason, faith-based or not. If Phillips doesn’t have that right, adding faith to the equation does not supply it. Perhaps that is why the Trump administration, as well as the Cato Institute, both of which filed amicus briefs in support of Phillips, did not endorse his free-exercise claims. In short, as a legal matter, religion has nothing to do with this case. The Supreme Court should resolve it solely on the basis of freedom of speech.

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Symposium: Discrimination is not a fundamental American value

Symposium: Discrimination is not a fundamental American valueVanita Gupta is the president and CEO of The Leadership Conference on Civil and Human Rights. More than five decades ago, our country wrestled with the issue of whether businesses open to the public should be open to everyone on the same terms, regardless of their race. Among other reasons offered at the time for […]

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Symposium: Discrimination is not a fundamental American value

Vanita Gupta is the president and CEO of The Leadership Conference on Civil and Human Rights.

More than five decades ago, our country wrestled with the issue of whether businesses open to the public should be open to everyone on the same terms, regardless of their race. Among other reasons offered at the time for perpetuating the wholesale exclusion of African-Americans from restaurants, movie theaters and hotels was the importance of sincerely held religious views: the conviction, by some, that their religious faith prohibited mixing of the races. In the Civil Rights Act of 1964, Congress resolved that debate in favor of rectifying “the deprivation of personal dignity that surely accompanies denials of equal access to public establishments.”

On that principle, there ought to be no question that Colorado’s law allowing Charlie Craig and David Mullins to buy a wedding cake from any bakery they choose – notwithstanding that they are gay – should trump claims by a bakery that providing the cake would violate the owner’s religious beliefs. Yet that is the question the Supreme Court will take up this term in Masterpiece Cakeshop v. Colorado Civil Rights Commission.

Freedom of religion is one of our most fundamental rights in America. That is why it is protected in the First Amendment to the Constitution. But religious liberty is not a talisman that confers absolute immunity from any personal constraints at all: At times, the free exercise of religion yields to other foundational values, including freedom from harm and from discrimination.

The balance between these foundational values is illustrated in Newman v. Piggie Park Enterprises, the Supreme Court’s 1968 decision in a challenge to a South Carolina barbecue chain’s policy of denying service to African-Americans. Piggie Park – famous largely for the Supreme Court’s powerful statement of the need for private attorneys general to vindicate civil rights – is no less instructive for the lower court’s treatment of the segregationist restaurant owner’s religious-liberty justification for his policy of refusing to serve black customers: “The free exercise of one’s beliefs,” the trial court explained, “as distinguished from the absolute right to a belief, is subject to regulation when religious acts require accommodation to a society. Undoubtedly, [the restaurant owner] has a constitutional right to espouse the religious beliefs of his own choosing; however, he does not have the absolute right to exercise and practice such beliefs in utter disregard of the clear constitutional rights of other citizens.”

The district court’s conclusion in Piggie Park was grounded on the recognition of equal personal dignity for all people in America, regardless of who they are. As Justice Arthur Goldberg pointed out in his concurring opinion in Heart of Atlanta Motel v. United States (upholding Title II of the Civil Rights Act of 1964 as a lawful exercise of Congress’ enforcement power under the commerce clause), the primary purpose of banning discrimination in public places is “the vindication of human dignity and not mere economics.” Quoting a Senate committee report on the Civil Rights Act of 1964, Goldberg explained that “[d]iscrimination is not simply dollars and cents, hamburgers and movies; it is the humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public because of his race or color.”

No less than racial minorities, LGBT individuals are our friends, neighbors, family members and co-workers. They work hard, serve in the military and pay taxes. When it comes to being served by a business otherwise open to the public, longstanding Colorado laws say gay and transgender people should be treated like anyone else, and not be subjected to discrimination. The same principle of equal human dignity should apply.

And in fact the Supreme Court has, in a series of decisions since 1996, acknowledged that we all deserve the same respect for our equal dignity, regardless of who we are or whom we love. In Romer v. Evans, the court invalidated an amendment to the Colorado Constitution, adopted by statewide referendum, that prohibited all government action designed to protect gays and lesbians from discrimination. Writing for the court, Justice Anthony Kennedy stated that the Colorado Constitution “classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do.”

A few years later, in Lawrence v. Texas, the Supreme Court invalidated Texas’ criminal prohibition on sexual relationships between two individuals of the same sex. Kennedy’s opinion for the court again emphasized the fundamental equal dignity of gays and lesbians: “It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons.”

And of course, the Supreme Court’s 2015 decision in Obergefell v. Hodges – acknowledging the fundamental right of same-sex couples to marry – was grounded in the majority’s recognition that “[t]here is dignity in the bond between two men or two women who seek to marry and in their autonomy to make such profound choices.”

Set against this line of cases, the question in Masterpiece Cakeshop is whether we recognize this human dignity, or instead grant companies sweeping license to discriminate against millions of our LGBT neighbors and family members on the basis of personal religious conviction. It’s about whether we allow the perpetuation of second-class status for gays and lesbians, denying them the dignity of participating on an equal footing in civic life. Just as we rejected the conclusion decades ago that the free exercise of religion can justify racial subjugation and segregation, so too should we reject the assertion today that the First Amendment allows gays and lesbians to be subjected to, as Congress put it in 1964, the “humiliation, frustration, and embarrassment that a person must surely feel when he is told that he is unacceptable as a member of the public.”

This conclusion does not require business owners to abandon their own deeply held personal views or endorse someone else’s marriage, any more than providing commercial services to a customer requires business owners to agree with everything the customer believes. It simply means that businesses providing a service to the public are open to everyone on the same terms.

The contrary conclusion – that companies can pick and choose whom they are willing to serve based on who that person is, or whom they love – creates a slippery slope that is perhaps obvious, but that nonetheless bears noting. If a company can refuse to sell wedding cakes to a gay couple on the basis of religious conviction, can restaurants refuse to serve food to divorcees, or families with children born out of wedlock, if the owner’s religious views do not countenance divorce or extramarital sex? Could a hotel refuse to rent rooms to an interracial couple?

The Justice Department argues in a brief it filed in the Supreme Court last week that certain businesses should in fact be allowed to discriminate against their customers when they provide services otherwise open to all. The government bases this striking argument, in part, on the contention that baking a wedding cake is a creative, expressive act that exempts the bakery from nondiscrimination laws. In essence, the Justice Department wants to constitutionalize a right to discriminate based on sexual orientation – which flies in the face of the Supreme Court’s statement in Obergefell that when “sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied.”

Just as the Civil Rights Act of 1964 was not about hamburgers and movies, Masterpiece Cakeshop is – as Charlie Craig’s mother has poignantly explained – not about the cake. It is about whether we classify our own neighbors as second-class citizens based on whom they love, or whether states instead have a legitimate interest in recognizing the equal dignity of everyone in America, and in eliminating all discrimination in public places.

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Symposium: Masterpiece Cakeshop and compelled participation in religious ceremonies

Symposium: <em>Masterpiece Cakeshop</em> and compelled participation in religious ceremoniesMithun Mansinghani serves as solicitor general for the state of Oklahoma. Michael K. Velchik and Zach West, assistant solicitors general, also contributed to this article. The state of Oklahoma, through Attorney General Mike Hunter, joined a 20-state amicus brief led by the state of Texas in support of the petitioners, a bakery corporation and its […]

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Symposium: <em>Masterpiece Cakeshop</em> and compelled participation in religious ceremonies

Mithun Mansinghani serves as solicitor general for the state of Oklahoma. Michael K. Velchik and Zach West, assistant solicitors general, also contributed to this article. The state of Oklahoma, through Attorney General Mike Hunter, joined a 20-state amicus brief led by the state of Texas in support of the petitioners, a bakery corporation and its owner, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

Gay marriage has been one of the most significant cultural issues of the past several decades. At one time, the majority of voters in many states held the view that legal marriage should only encompass relationships between one man and one woman, and they enacted laws forbidding state recognition of same-sex weddings. In Obergefell v. Hodges, the Supreme Court invalidated those laws, ruling that those who hold the traditional view of marriage cannot codify that belief into law and force those on the other side of the cultural debate to abide by it. Today, most Americans support legal recognition of same-sex marriage. The question in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is whether the logic of Obergefell applies now that the majority view has changed: Can those who support same-sex marriage codify their view into the law and force the new cultural minority to participate in same-sex weddings?

The answer to this constitutional question lies in the First Amendment. Although the parties in Masterpiece Cakeshop focus primarily on the freedom of speech, the freedom of religion is at least equally implicated. The First Amendment’s protection of religious conscience prevents government from forcing individuals to actively participate in religious activities to which they object. The justices in Lee v. Weisman, though divided on many aspects of the case, all agreed that the government “may not coerce anyone to support or participate in religion or its exercise.” Preventing religious coercion is sometimes seen as a function of the establishment clause, but it is also properly within the purview of the free exercise clause. Just as the protection for free speech includes a protection against government-compelled speech, the guarantee of free exercise likewise forbids the government from compelling religious exercise.

This is central to Masterpiece Cakeshop. The state of Colorado has ordered Jack Phillips to design and create wedding cakes for same-sex couples because he does so for heterosexual couples, even though Phillips believes that such participation in same-sex weddings violates his religious belief that weddings are a sacrament between one man and one woman. The question thus arises: Does the First Amendment’s protection from religious coercion shield Phillips from Colorado’s edict?

Weddings have historically been, and generally still are, religious ceremonies. Clergy usually lead the ceremonies, which often begin in houses of worship. Prayers are offered, solemn vows made, spiritual songs sung and verses from holy literature read. The Supreme Court’s decision in Obergefell spoke of the “transcendent importance of marriage” and its significance in “religious and philosophical texts spanning time, cultures, and faiths,” deeming it necessary for “spirituality” and “intimate to the degree of being sacred.” That decision was based in part on Turner v. Safley, which reaffirmed the right to marriage because, among other things, “many religions recognize marriage as having spiritual significance … [and] therefore, the commitment of marriage may be an exercise of religious faith.” Even if a particular wedding celebration leans toward the secular, a religious person like Phillips cannot be faulted for believing weddings are religious exercises.

Wedding cakes play a central role in these celebrations. Religious ceremonies have long revolved around special foods, and weddings in particular feature as their cynosure one particular food: cake. As early as classical Rome, patricians celebrated weddings by consuming a special spelt cake (far) that gave its name to the wedding ceremony (confarreatio). Various forms of “bride-cakes” or “wedding cakes” continued to be used for wedding ceremonies throughout European history. By 1948, the publication Good Housekeeping stated that “[m]any consider a wedding without a cake almost illegal.” Today, entire companies, blogs and experts are devoted to the wedding cake. It is one of the visual cornerstones for marriage, and its ritual cutting plays an iconic role in the wedding celebration. Unlike other goods, wedding cakes are specifically made and exclusively used for matrimonial celebrations. The association of wedding cakes with marriage ceremonies is so ingrained in the modern psyche that couples will often preserve a piece to eat on their one-year anniversary as a reminder of their spiritual union.

Phillips thus reasonably argues that Colorado is forcing him to participate in a religious activity to which he objects by requiring him to craft elaborate, custom wedding cakes to celebrate same-sex unions. If refusal to participate in another’s wedding were not protected by the First Amendment, other participants such as photographers, florists, wedding planners and potentially even officiants would not be sheltered by the Constitution’s prohibition on religious coercion. Neither would the freedom of religion preclude the government from requiring a Jewish band to perform at a Christmas party, a Muslim event planner to coordinate a Wiccan ritual or a baker specializing in communion wafers to bake them for desecration at a Satanic “black Mass.”

Of course, none of this is to say that any purportedly religious objection automatically exempts the objector from all laws to which he objects, including anti-discrimination laws. Phillips himself is happy to create baked goods for gay individuals and couples for non-religious events, such as birthdays or baby showers. He also refuses to create baked goods for other spiritually significant activities that do not align with his own religious beliefs, including Halloween celebrations and polygamist marriages. In short, Phillips does not seek to discriminate based on sexual orientation, but rather only desires freedom from being forced to participate in religious activities with which he disagrees, including same-sex weddings.

This case is thus different from those in which the Supreme Court sustained legal measures aimed at combatting discrimination against African-Americans. Those cases upheld laws prohibiting racial discrimination by private institutions based on the “firm national policy to prohibit racial segregation and discrimination.” Such laws, the court stated, were necessary for the “eradication of racial discrimination” and were thus “essential to accomplish an overriding governmental interest.” Similarly, the court found that “eradicating discrimination against its female citizens” is a compelling state interest, upholding laws that prevent such “acts of invidious discrimination.”

Are the traditional religious beliefs about marriage a scourge upon society similar to that of racism, such that the state is justified by an “overriding governmental interest” in “eradicating” that belief and the individual choices that belief compels?

The Supreme Court in Obergefell did not appear to think so. Rather, they stated that the view of marriage as a “union of man and woman” is held “in good faith by reasonable and sincere people here and throughout the world.” The Obergefell court held that these individuals arrive at their view on marriage “based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged” by the court’s decision. It would require quite a reversal from Obergefell, then, to view the beliefs at issue in Masterpiece Cakeshop as “invidious.”

Rather, the five justices forming Obergefell’s majority “emphasized that religions, and those who adhere to religious doctrines,” may continue to live their lives in conformity with the idea that “same-sex marriage should not be condoned.” “The First Amendment,” the Supreme Court wrote, “ensures that religious organizations and persons are given proper protection.” Such protection from majoritarian institutions is all the more necessary because those who oppose the legal recognition of same-sex marriages are now a distinct minority. Indeed, a premise of the decision in Obergefell is that one side of this religious and philosophical debate cannot require their sincere views to “become[] enacted law and public policy,” because that “put[s] the imprimatur of the State itself on an exclusion” of the other side “that soon demeans or stigmatizes those whose own liberty is then denied.” The same should remain true now that the shoe is on the other foot.

Living in a diverse, pluralistic society is difficult. Obergefell appeared to assure the nation that, when it recognized same-sex marriages, it would also craft a legal framework that would allow our divided country to share a society where each can follow their own conscience. It put forward the promise that one side of the culture war could not use the law as a tool to eliminate the other. This case will test whether that promise holds true.

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Wedding cakes v. religious beliefs?: In Plain English

Colorado’s anti-discrimination law bars places of public accommodation – that is, businesses that sell to the public – from discriminating based on (among other things) sexual orientation. In 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop, a Denver-area bakery, to order a cake to celebrate their upcoming wedding. But the couple left empty-handed […]

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Colorado’s anti-discrimination law bars places of public accommodation – that is, businesses that sell to the public – from discriminating based on (among other things) sexual orientation. In 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop, a Denver-area bakery, to order a cake to celebrate their upcoming wedding. But the couple left empty-handed … and upset. Masterpiece’s owner, Jack Phillips, is a Christian who closes his business on Sundays and refuses to design custom cakes that conflict with his religious beliefs – for example, cakes that contain alcohol, have Halloween themes or celebrate a divorce. And because Phillips also believes that marriage should be limited to opposite-sex couples, he told Craig and Mullins that he would not design a custom cake for their same-sex wedding celebration.

 

Craig and Mullins went to the Colorado Civil Rights Division, where they accused Phillips of discriminating against them based on their sexual orientation. The agency initiated proceedings against Phillips, who responded that he had turned down the couple not because of their sexual orientation as such, but because “he could not in good conscience create a wedding cake that celebrates their marriage.” The agency, however, dismissed that explanation as “a distinction without a difference,” and it ruled both that Phillips’ refusal to provide the custom cake violated Colorado anti-discrimination laws and that Phillips had “no free speech right” to turn down Craig and Mullins’ request. The Colorado Civil Rights Commission upheld that ruling and told Phillips – among other things – that if he decided to create cakes for opposite-sex weddings, he would also have to create them for same-sex weddings. A Colorado court affirmed, and Phillips asked the Supreme Court to take his case, which it agreed to do in June.

In his brief at the Supreme Court, Phillips depicts the legal battle as a pivotal one that threatens “his and all likeminded believers’ freedom to live out their religious identity in the public square,” as well as the “expressive freedom of all who create art or other speech for a living.” He stresses that the First Amendment protects expression, which is not limited to words but can also include visual art, from traditional paintings and movies to tattoos to stained-glass windows. The “expression” protected by the First Amendment also extends to Phillips’ wedding cakes, he says, even if they are made with “mostly edible materials like icing and fondant rather than ink and clay,” because they convey messages about marriage and the couple being married. And the First Amendment also bars the state both from requiring Phillips to design cakes bearing messages that violate his beliefs and from punishing him for refusing to create such cakes – particularly when Phillips could, if he supported same-sex marriage, refuse requests to design cakes that oppose it.

Because of the burden that Colorado’s public-accommodations law places on his religious beliefs, Phillips asserts, the law should be subject to the toughest constitutional test, known as “strict scrutiny.” But the state cannot meet that test, he continues. First, he contends, although the state “has an interest in ensuring that businesses are open to all people, it has no legitimate—let alone compelling—interest in forcing artists to express ideas that they consider objectionable.” And even if the state did have a compelling interest in making sure that same-sex couples have access to the services that they need to celebrate their marriages, he adds, the state’s efforts to enforce that interest sweep too broadly, because it has not shown that same-sex couples have had any trouble obtaining such services. To the contrary, he notes, Craig and Mullins received a free rainbow-themed custom cake from another local business.

Masterpiece has a number of allies – none more important than the Trump administration, which this week filed a brief supporting the bakery. The federal government argues that public-accommodations laws like Colorado’s will generally pass constitutional muster, because they normally only regulate discrimination in providing goods and services – conduct that is not protected by the First Amendment – rather than expression. For example, the government says, when wedding vendors rent out a banquet hall or a limousine, that is not a form of expression. And even if the vendors believed that they were expressing a message about marriage by renting out a venue or providing a chauffeured vehicle, others would not necessarily agree, nor would they necessarily pick up on that message.

But some laws will be subject to a more searching review, the government explains, if applying the law would either alter someone’s speech or compel that person to participate in an event that conflicts with his beliefs. The government maintains that, at least in this case, Colorado’s public-accommodations law triggers that more searching review because it compels Phillips to create custom cakes for same-sex marriage celebrations, which (depending on the cake) can be either actual speech or, at a minimum, the kind of expressive conduct that conveys a message to others, without allowing Phillips to make clear that he does not share his customers’ viewpoints on same-sex marriage. Moreover, Colorado does not have a sufficiently strong interest to justify infringing on Phillips’ religious beliefs, particularly because same-sex marriage was not even legal in Colorado when Craig and Mullins asked Phillips to create a cake. Indeed, the federal government emphasizes, this is a far cry from the kind of discrimination that the public-accommodations law was designed to combat: The Supreme Court itself has acknowledged that “opposition to same-sex marriage ‘long has been held—and continues to be held—in good faith by reasonable and sincere people.’”

The state and Craig and Mullins counter that there is no constitutional problem because the public-accommodations law targets only conduct, not speech: The law makes clear that when businesses sell products or services to the public, they cannot discriminate against some members of that public based on, for example, their sexual orientation. The state and couple dismiss Phillips’ argument that the application of the public-accommodations law to him effectively compels him to speak out in favor of same-sex marriage. They maintain that no “reasonable observer would understand the Company’s provision of a cake to a gay couple as an expression of its approval of the customer’s marriage, as opposed to its compliance with a non-discrimination mandate” – especially because Masterpiece is also required to post a sign indicating that the law bars discrimination based on, among other things, sexual orientation. Indeed, they point out, Masterpiece could even use its own sign to make clear that providing baked goods for an event does not constitute endorsement of that event. And the law does not impinge on Phillips’ right to exercise his religion, they insist, because the Supreme Court has ruled that the free-exercise right “does not include a right to disobey neutral and generally applicable laws, including non-discrimination laws.”

The implications of a ruling for Masterpiece, the state and the couple suggest, would be sweeping, far beyond the “countless businesses” such as hair salons, tailors, architects and florists that “use artistic skills when serving customers or clients.” They contend that a wide range of businesses could “claim a safe harbor from any commercial regulation simply by claiming that [they] believe[] complying with the law would send a message with which [they] disagree[].” Such an outcome, they conclude, would “eviscerate” the government’s ability, including through labor and health laws, to regulate all kinds of transactions.

In 2014, the Supreme Court turned down a request by a photography studio to review a New Mexico Supreme Court decision holding that the studio violated the state’s anti-discrimination laws when it refused to photograph a same-sex commitment ceremony. The petitioners in that case, Elane Photography v. Willock, argued that taking those photographs would violate their religious beliefs, but – after considering the petition at three consecutive conferences – the justices declined to weigh in. Many court-watchers believed that Phillips’ case might meet a similar fate: If the photography studio couldn’t muster the four votes needed to grant review while the late Justice Antonin Scalia was still on the court, Phillips presumably also would not be able to do so even once Scalia’s successor, Justice Neil Gorsuch, took the bench. But after considering the case at 15 conferences, the justices announced on June 26 that they had granted Phillips’ petition.

The case is likely to be scheduled for oral argument during the court’s December sitting; that oral argument could give us more insight into the justices’ apparent change of heart and how they view Phillips’ claims.

This post was originally published at Howe on the Court.

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