Free Speech

California Court Upholds First Amendment Right Not to Bake Cake for Same-Sex Wedding

This is a trial court decision, and an appeal seems likely.

|The Volokh Conspiracy |

From yesterday's order in Dep't of Fair Emp. & Hous. v. Miller:

A wedding cake is not just cake in Free Speech analysis. It is an artistic expression by the person making it that is to be used traditionally as centerpiece in the celebration of marriage. There could not be greater form of expressive conduct. Here, Rodriguez—Del Rios plan to engage in speech. They plan celebration to declare the validity of their marital union and their enduring love for one another. The State asks this court to compel Miller against her will and religion to allow her artistic expression in celebration of marriage to be co-opted to promote the message desired by same-sex marital partners, and with which Miller disagrees….

The court cannot retreat from protecting the Free Speech right implicated in this case based upon the specter of factual scenarios not before it. SmalI-minded bigots will find no recourse in committing discriminatory acts, expecting to be sheltered from Unruh Act prohibitions by false cry of Free Speech. No court evaluates Free Speech rights against the interest of the State in enforcing public access laws in vacuum, without regard to circumstances, history, culture, social norms, and the application of common sense. Here, Miller's desire to express through her wedding cakes that marriage is sacramental commitment between man and woman that should be celebrated, while she will not express the same sentiment toward same-sex unions, is not trivial, arbitrary, nonsensical, or outrageous. Miller is expressing belief that is part of the orthodox doctrines of all three world Abrahamic religions, if not also part of the orthodox beliefs of Hinduism and major sects of Buddhism. That Miller's expression of her beliefs is entitled to protection is affirmed in the opinion ofJustice Kennedy in Obergefell v. Hodges (2015) wherein the Court established that same-sex marriages are entitled to Equal Protection. Therein, the Court noted: "[f]inally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered."

Furthermore, here the State minimizes the fact that Miller has provided for an alternative means for potential customers to receive the product they desire through the services of another talented baker who does not share Miller's belief. Miller is not the only wedding cake creator in Bakersfield.

The fact that Rodriguez-Del Rios feel they will suffer indignity from Miller's choice is not sufficient to deny constitutional protection. Hurley [the case uphold the right of St. Patrick's Day Parade organizers to exclude pro-gay-rights speech -EV] established that the State's interest in eliminating dignitary harms is not compelling where, as here, the cause of the harm is another person's decision not to engage in expression. The Court there recognized that "the point of all speech protection … is to shield just those choices of content that in someone's eyes are … hurtful." An interest in preventing dignitary harms thus is not compelling basis for infringing free speech. (See Texas v. Johnson (1989); see also Hustler Magazine, Inc. v. Falwell (1988).)

I don't think this analysis is correct, for reasons Dale and I gave in our amicus brief: While creating photographs, videos, and text would be constitutionally protected speech (so we support the right of, for instance, photographers not to photograph same-sex weddings), creating wedding cakes with no text or symbolic design on them is not. (In this case, the couple selected a preexisting design, and "did not want or request any written words or messages on the cake.") Still, I thought the opinion was noteworthy.

By the way, I take it that it's clear that the Free Speech Clause issue can't turn on whether Miller's belief "is part of the orthodox doctrines" of many religions, or whether it's instead "trivial, arbitrary, nonsensical, or outrageous"—the Free Speech Clause protects views regardless of whether they express views that are seen as orthodox, outrageous, or nonsensical.

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  1. While I agree a cake is not necessarily speech, your argument struggles against existing precedent. As suggested in your penultimate paragraph: a photo of the cake could be speech (because presumed creative choices) and a photocopied poem (cf “preexisting design”) could be speech. These distinctions aren’t coherent.

    1. But Kinko’s making 100 photocopies of a pre-existing poem isn’t speech. (Or at least they wouldn’t be allowed to refuse to do so because they don’t approve of the same-sex marriage the poems are intended to be used for.)

      1. But is that right?

        Consider a ketubah (Jewish marriage contract) artist who refuses a gay couple. Artists who produce them have an array of designs they have created that they combine with either generic or customized wording. The lettering may be a creation of the artist. If the artist refuses to provide her work, is that a First Amendment right? It is a document bearing words and art. It should count as protected speech, historically defined. As such, the artist shouldn’t be compelled to create a work, even based on a preexisting template and even if words were chosen by the couple. I think this to be the case, but let me know if you see an argument for compulsion. In the digital age with art created on computers/printers, does that change the 1st Amendment analysis? I think it changes the process by which the art/words are rendered.

        The Kinko’s example is different because the speech isn’t done by the Kinko’s employee, whatever moral objection they have to copying. But what of the freedom of the press, applicable to Kinko’s and the Ketubah artist? Prof Volokh and others have made the case that the freedom concerns technology, ie the printing press (not merely media organizations). May a Kinko’s refuse to photocopy on that basis? May a newspaper refuse to print wedding announcements for gay couples? I think there’s a strong argument that there is a protected right to not print something. Would a general non-discrimination law countervail a right to not print something?

      2. I would argue that, in this example, Kinko’s is not acting as a speaker, but as a scribe. They are performing a manual act for pay, just like a plumber.

    2. youre right, because photos arent speech either.

  2. Prof Volokh, I remain unpersuaded by your attempt to distinguish between photography and cake baking. Both may have degrees of expressive content vs commodity provision. Both can involve significant interaction with the wedding ceremony – or little (though obviously there are differences in the timing of the involvement). Neither strikes me as inherently more or less expressive professions. Either they both should be protected or neither.

    Disclosure: My mother ran a side-business making wedding cakes when I was young. As I got older, I helped as assistant baker and delivery. Her degree of interaction with the couple was often extended – from what I personally saw, she was at least as involved as the photographers.

    1. Your equivalence between a baker and a wedding photographer involvement in the wedding day is patently false.

      The baker comes in, sets up the cake, and leaves.

      The photographer is there from when the couple begins to get ready for the day, through the middle/end of the reception when the special dances are done (traditionally, the Father/Bride dance and the Mother/Groom dance, etc.)

      In other words, you’re trying to say a 1 hour day is equivalent to an 6-10 hour day. False.

      1. Your assessment of what the baker does is laughably untrue.
        Since your starting premise is false, your conclusion is unjustified.

      2. In total time, my wife and I spent more time with the baker than the photographer. Design, tastings, coordination with wedding themes, etc.

      3. “The baker comes in, sets up the cake, and leaves.”

        Utter nonsense. The baker plans, coordinates, designs, imagines, creates, builds, produces, crafts, whatever one may call it. This is as much “speech” as any other creative production, and to deny it in favor of a momentary irritation or inconvenience or disquiet is a terrible denial of freedom of expression.

        I hardly dared believe the decision. From California itself, no less! A spirited defense of freedom of speech and free exercise of religion. The decision is correct. I respect Eugene Volokh, but he is terribly wrong in this case.

        I now have some small hope for the outcome of the Colorado cake-baker SCOTUS case.

        1. Evidently none of you bothered to actually read what I wrote.

          “…involvement in the wedding day..”

          Tastings are done on the wedding day? Designs? Coordination of themes?

          NO. None of that is done on the wedding day, and the baker is not involved in the ceremony at ALL. Next time try reading ALL the words, instead of glossing over important details.

          1. Still untrue. You’ve clearly never been a baker. But more to the point, your argument is irrelevant. The ceremony is not merely the wedding day. Your reductionist argument tries to put bounds on the definition of “the ceremony” which cannot be justified.

            Consider – if you’re going to put bounds on the ceremony, why draw them at the day? Why not just while the bride and groom are at the altar in front of the priest? Or why not just those few words near the end where the priest legally joins the couple? Does that mean a photographer who doesn’t film that exact moment is striped of the “expressive nature” for everything else he/she does? For that matter, does the photographer’s “expressive content” even come during the taking of the pictures? Or is it an artifact of the selections, adjustments and developing long done after the ceremony back in the studio?

            Your attempt to narrow the definition of “the ceremony” fails as a test for distinguishing why photographers should get First Amendment protection but bakers should not.

            1. I’m willing to concede that the wedding day itself can be counted as the ceremony, which is overly generous, given that the ceremony traditionally starts with the procession, and ends with the recessional.

              Arguing that the wedding ceremony extends to more than the wedding day itself is patently false – and you know it.

              So does everyone else who’s attended a marriage, or committed to one. The fact that you’re trying to argue otherwise demonstrates that you’re being deliberately intellectually dishonest.

              The entire same-sex marriage and which businesses are permitted to discriminate argument is nothing more than pro-segregation arguments all over again. Bigots lost in the 60s, and they deserve to lose here too.

              1. Wonky commenting system. That comment was intended as a reply below. This is what was supposed to be here.

                You are missing the point, Jason. The only relevant question in this thread is why is the photographer’s work counts as “expressive” and protected but the baker’s not.

                Your concession is both legally unjustified and fails to support your argument. If, as you claim, the ceremony starts with the procession and with the recessional, then a photographer who doesn’t film that particular part is not participating in the ceremony either. (Remember that some brides allow the photographer free rein to wander anywhere during the wedding but others choose to restrict the photographer’s interactions – and some churches flat prohibit the photographer’s interference.)

                Yet Prof Volokh argues (and everyone else seems to agree) that the photographer’s work still counts as expressive and thus protected. They argue that this is true EVEN IF the photographer just takes pictures before and after the actual church proceedings and EVEN IF they happen on different days entirely.

                I find that distinction untenable. Either both activities are protected or neither. And your attempt to resurrect it by gaming the definition of “participation in the ceremony” doesn’t help. Even assuming your best scenario, photographers and bakers can have the same level of interaction and participation in whatever boundary of “the ceremony” you care to draw.

                1. continued

                  All that said, it is not “intellectually dishonest” to note that many people fail to draw the same definition of “the ceremony” as you do. In lots of circumstances, wedding ceremonies do not even have starting processions or ending recessionals. They are nonetheless legally binding and every bit as much a wedding as the formal Christian church service that you assume.

                  So get off the ad-hominems. Stop assuming that everyone who disagrees with you must be a bigot and answer the legal question. On what legal basis or reasoning is a photographer’s work always protected as expressive that also always excludes the baker’s work?

                2. Eugene’s distinction is 1) photography has been historically protected by the First Amendment while cake baking hasn’t, and 2) cake baking isn’t inherently expressive and so shouldn’t be added to the list.

                  What about this distinction do you find untenable?

                  1. So, Josh, you’re saying that the legal reasoning boils down to “because we’ve always done it that way”? No, I do not accept that as a valid argument, especially when the cake baking side of the example has merely been untested all this time. You’d have a stronger argument if there were precedents that had explicitly found cake-baking to be non-expressive but without those precedents, it’s a null. Absence of evidence is not evidence of absence.

            2. That can’t be right because that legal standard would leave many small businesses in an impossible position. Consider the bakery that only has one employee – or at least, only one with the skills necessary to decorate a wedding cake. In that case, the employee and employer are indistinguishable – he/she is both permitted to refuse to act and compelled to act.

              Whatever the law is, it has to work uniformly and ought not to produce self-contradictions.

              By the way, stock product with customer’s customizations does not meet the legal definition necessary to lose the “expressive” nature that brings First Amendment protections. Consider a situation where you go to a sign-maker and ask for a placard that says “Dump Trump” (or Hillary or Reid or …). The sign-maker has a stock product – 20″x30″ cardboard on a stick with the customer’s customizable choice of writing. Yet that sign is clearly protected as “expressive”. And more to the point, it is protected both for you, the customer, AND for the sign-maker.

              1. I’m not seeing a contradiction. In your single employee hypothetical, the employer/employee is required by law to bake the cake. What makes you think they are permitted to refuse to bake the cake?

                Sign makers are protected because they have historically been. And while you find following that precedent disturbing, it is likely the case they have been historically protected because they are inherently expressive (unlike cake baking).

                1. If cake baking isn’t expressive why do they have contests and even TV shows about it?

                  1. Because they think that cake baking is a skill that can be objectively assessed based on factual observations rather than opinions?

        2. The baker, according to their marketing materials, had already planned, coordinated, designed, what have you. It was a preexisting design. Just bake it. I agree with you on the Colorado case, but that is not the California case.

          1. This argument (which is Prof. Volokh’s argument) doesn’t work. What if it were a singer, being asked to sing a song at the wedding? Would you tell her, “It’s a pre-existing song; just sing it.” She would respond, “Do you think I am just a voice synthesizer? I put expression into a song every time I sing it.”

            In fact, the cake case is even worse: it’s as if you were forcing the composer of the song to sing it, on the grounds that the song already exists, so there’s no more expression involved in supplying it.

            1. If you’re claiming baking is a performance art in addition to being a design art… well, that’s certainly a novel claim. I’d want to see it argued.

              My actual view of course is pure freedom of association, this sort of quibble is just the knots the law is tied in.

          2. The confusion is that civil rights laws are about the obligation of the bakery, not a particular employee of that bakery. If Baker or Miller doesn’t want to make the cake, decorate the cake, deliver the cake, then let another employee do it. Any employee can ask for religious accommodation, but that doesn’t relieve the business from its obligation to not discriminate because of a civil right.

            And the case in Colorado is even clearer: Jack Baker specifically asked the public to come and buy wedding cakes on the business’s Wedding cake photo gallery on line with these words:

            “Click the cake image and if you see something you like, just tell Jack. You can customize any cake exactly the way you want it!”

            The business offered stock cakes with customer’s customizations, not ‘art’ created by the employee decorating the cake.

            1. That can’t be right because that legal standard would leave many small businesses in an impossible position. Consider the bakery that only has one employee – or at least, only one with the skills necessary to decorate a wedding cake. In that case, the employee and employer are indistinguishable – he/she is both permitted to refuse to act and compelled to act.

              Whatever the law is, it has to work uniformly and ought not to produce self-contradictions.

              By the way, stock product with customer’s customizations does not meet the legal definition necessary to lose the “expressive” nature that brings First Amendment protections. Consider a situation where you go to a sign-maker and ask for a placard that says “Dump Trump” (or Hillary or Reid or …). The sign-maker has a stock product – 20″x30″ cardboard on a stick with the customer’s customizable choice of writing. Yet that sign is clearly protected as “expressive”. And more to the point, it is protected both for you, the customer, AND for the sign-maker.

              1. So you are saying that a business could make ‘Christians are evil’ signs but refuse to make ‘Muslims are evil’ signs without it being a civil rights discrimination.

                And if the employee is also the owner its even simpler – don’t offer something to the public for sale that they feel they can’t sell legally, i.e. while respecting the customer’s civil rights. Sell something else or only offer it for sale to members of private membership business.

                SCOTUS made a similar decision in Lee. The Amish business owner felt he couldn’t run his business and collect Social Security taxes. The court said that would be effectively imposing his religious beliefs do others. Everyone has a right to be an employee or a customer of a business and use their purchase consistent with their own beliefs regardless of the business owner’s. That’s their decision – but if they offer it it must be done so legally.

                1. No, I’m saying that your sign-maker’s choice would be protected by the First Amendment whether or not it would also be civil rights discrimination. I’ll further say that at the very least, the First Amendment and public accommodation laws are in tension. The stronger argument (which I’m not sure I support) is that the First Amendment is coded as part of the Constitution and trumps the public accommodation laws which are merely coded as statutes.

                  Yes, this creates significant potential for abuse such as insincere claims that “it’s my part of my religion to discriminate against X”. Lots of other laws have similar potential for abuse but somehow civilization has not yet collapsed.

                  The Lee decision is a contrary precedent but it must be noted that the decision explicitly called for the government to “justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest”. Uniform enforcement of the tax code was such an overriding governmental interest that could be accomplished no other way. It’s not even clear that the government has an interest in this case (though its citizens do) nor that this is the only way to accomplish that interest. The Lee decision could probably be distinguished either way.

      4. I think it depends on the amount of expressive work involved. If the photographer sets up some glorified security cameras, records the wedding, and supplies CDs of the recordings, then that is not art, and not protected. If he composes each photo and selects the optimal moment to capture it, that is art.

        Likewise, if a baker takes three slabs of cake, piles them up, slathers on some frosting, puts two figurines of guys in tuxedos on top, and letters, “Best Wishes Adam and Steve,” that is craft and is unprotected. If he makes a masterpiece cake, like they do on those cake baking shows, it is art and is protected.

        Somewhere, between craft and art, is a fuzzy grey line. It will probably remain the responsibility of the trial court to determine where that line lies. This is the way I expect SCOTUS to rule when they rule.

    2. Normally, I would agree with you, if, as in the Colorado case, we were talking about a customized cake. (“text or images” is irrelevant to the analysis for me– any and all design choices are an expressive act). But we are not, this was a from a preexisting selection of designs. According to the bakers’ own marketing materials in this case, these were already designed, no “extended interaction with the couples” involved or whatever. In the Colorado case, the baker said explicitly– any of our preexisting goods, we will be happy to sell you. We just won’t design you a cake. Because that baker had no “preexisting” cakes.

      This baker does. Thus, it is no longer expression, it is mere discrimination in commodity provision.
      While I think people should be free to discriminate in general in their private affairs, that’s a freedom of association argument, not a freedom of speech argument, and that ship has long since sailed as far as legal precedent is concerned.

  3. Bakersfield apparently only has one bakery. Otherwise, the State of California would not be wasting its time, right?

    1. I believe that under the regulations that govern the implementation of the Unruh Act, once the state DFEH (the relevant department) finds a likely violation, it is *required* to pursue legal remedies. So it doesn’t matter how many bakeries Bakersfield has–once the DFEH receives a report that, upon investigation, would support a finding of a violation, the DFEH has to file suit.

      1. No discretion? Cannot settle?

        1. You don’t want your witch hunters to suddenly go all soft on you.

        2. If ‘they could go elsewhere’ worked, then the original case of religious discrimination by a business, Piggie Park Enterprises, should have been decided for that business owner too.

  4. EV’s position on this is a disappointing break from his otherwise strong 1A positions.

    1. Yup. The baker is refusing to bake the cake based on the fact that it will be used in a celebration of a SSM, a viewpoint with which he doesn’t agree. This is compelled speech.

      1. As was discussed during oral arguments of Masterpiece, the same could be said of the flowers, the greeting cards, the haircuts, the jewelry, the makeup, the clothes and the food. If the standard for speech is use in a wedding, all of the providers of the above services too would be compelled to speak.

        1. “…all of the providers of the above services too would be compelled to speak.”

          So? Whether a baker of wedding cakes is engaged in protected artistic expression does not turn on whether weddings employ an unusually large number of other similarly situated artists.

          1. The “so” is targeted at those who conclude the tailor, the makeup artist and the sandwich artist aren’t engaged in protected artistic expression. Perhaps you believe they are, or perhaps you agree they aren’t but somehow distinguish the baker. If it is the latter, what distinction do you make?

    2. 12 inch

      But if the courts (or society) were to accept your argument, it would allow me to refuse service to blacks (my sincerely-held religious beliefs say that blacks are unclean), to the disabled (again, my sincere beliefs are that God is punishing disabled for moral failings, and serving them goes against God’s will), to left-handed people (duh, obviously cursed by the devil), to Trump supporters (immoral, and I would be complicit if I served them), to Trump opponents (my religion says that anyone opposed to Cadet Bone Spurs is evil), and so on.

      In other words, if we allow religious beliefs to trump otherwise-valid anti-discrimination laws, then the exception swallows the rule. (Or, soon would.) I know that we’ve already passed federal legislation that allows this ‘trumping’ in many cases. But I think those should be limited, rather than expanded, in scope.

      My (probably incorrect) recollection is that this legislation was originally prompted by cases like native Americans being prosecuted for using peyote in their religious ceremonies. “Hey, these guys are not hurting anyone with their religious expressions. Leave them alone!” We can see how quickly this has expanded, and now these newly-legislated religious rights are being used (almost always, in perfectly good faith) to impact the rights and lives of others. For me, one of the clearer recent examples of unintended consequences.

      1. My (probably incorrect) recollection is that this legislation was originally prompted by cases like native Americans being prosecuted for using peyote in their religious ceremonies. “Hey, these guys are not hurting anyone with their religious expressions. Leave them alone!” We can see how quickly this has expanded, and now these newly-legislated religious rights are being used (almost always, in perfectly good faith) to impact the rights and lives of others. For me, one of the clearer recent examples of unintended consequences.

        You’re confusing this case — a free speech case — with RFRA cases.

        1. Is this free speech or free exercise? I can never figure it out with these. I ask because I thought if this was a free speech case then Employment Division v Smith would clearly indicate no problem because the antidiscrimination laws are clearly laws of general applicability.

          I think this has to be a Free Exercise case but someone feel free to correct me on why there would be a Free Speech issue.

          1. Never mind. I am an idiot. Even as I was hitting submit I realized I flipped them. It’s late I need to go to bed.

      2. “But if the courts (or society) were to accept your argument, it would allow me to refuse service to blacks (my sincerely-held religious beliefs say that blacks are unclean), to the disabled (again, my sincere beliefs are that God is punishing disabled for moral failings, and serving them goes against God’s will), to left-handed people (duh, obviously cursed by the devil), to Trump supporters (immoral, and I would be complicit if I served them), to Trump opponents (my religion says that anyone opposed to Cadet Bone Spurs is evil), and so on.”

        The First Amendment doesn’t mandate that you provide services to anybody. And I’m not aware of any anti-discrimination laws that prohibit people from discriminating against the left-handed, and there are only a few that prohibit discrimination against people for their political views.

      3. santamonica811: “But if the courts (or society) were to accept your argument, it would allow me to refuse service to blacks (my sincerely-held religious beliefs say that blacks are unclean),….”

        No. Re-read.This does not allow that at all. It /specifically/ does not countenance refusing service. If there were a cake in place, the baker would /have/ to sell it to the same-sex couple (or the black couple, etc.). The big BUT is this: the couple cannot compel the baker to /create/ a unique expression in favor of something she finds abhorrent. That’s the major point, and the opposition keeps missing it.

        1. There’s historical precedent for sincerely held religious objection to interracial marriage (which like gay marriage also used to be illegal); can they be refused a cake (in the same circumstances as here)? ‘Yes’ is really the only logically consistent position. That’s what I think was the point.

          1. If santamonica811 is referring to refusing an inter-racial wedding cake, then yes this is on point, and yes a baker could opt out of such an action on the same grounds, to not create a wedding cake depicting a white groom and black bride, or whatever.

            But that’s not what S-811 /said/ — rather that one could refuse service to blacks for thinking them unclean (itself not clear to me — meaning insufficiently laundered or ritually impure?) or the disabled, or Trump supporters, or the left-handed, and so forth and so on.

            That brings up entirely different issues that are not tied to the compelled speech issue at center stage here.

            There are some here (I’m not among them) who believe one should be free to refuse almost any services to almost anyone on almost any basis. They’ll get little any traction with a free speech argument, and I believe they rest their cases on free association. I wish them well and will oppose them.

            1. If they only wanted to associate with a sub-set of the public, why did they advertise to the public – a group comprised of all civil rights groups/

              Obviously they can’t invite everyone to come buy and then say to the invited customer ‘Oh, we didn’t mean you?’ If they want to only deal with a sub-set then they need to make that clear they only market to that subset in the original offer.

              They freely offered to ‘associate’ with the public knowing they couldn’t then discriminate against any of them because of a civil rights group, far too late to change their mind when the customer shows up at their door.

              1. “Obviously they can’t invite everyone to come buy and then say to the invited customer ‘Oh, we didn’t mean you?”

                Interesting point. I’d like them to do that. Then I’d know to avoid such places. But in many locations it is required that one get a business license to engage in a private trade, /and/ it is against the law to post such things.

        2. but the meal hasnt been cooked yet. so why cant blacks be refused service at a restaurant?

          1. jslinner: You’d need to make a free speech argument on that. I think you’d have a really hard time.

      4. One of the issues in these type cases is both Free Speech & Free Religion are 1st Amendment issues where any government (incorporated in 14A) “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…”

      5. Yes its called freedom. Specifically the right to freely associate, which follows to the right to NOT associate, as well as free speech.

        It sucks, but its better than slavery.

  5. First, who would want a wedding cake baked by someone who was forced to bake it and believes they are committing a sin by baking it? NO ONE. When you are hiring the various services for a wedding, you hire persons who you believe support the wedding and want to make it the best event possible. So my first issue with these lawsuits is that they are merely aimed at punishing persons with different beliefs rather than sincere efforts to hire these bakers and other service providers. Using public accommodation laws to punish those with other beliefs rather than to accommodate persons is a misuse of these laws.

    Second, market forces are sufficient — if persons boycotted the baker based on beliefs, many people would opt to use other bakers for weddings of strait and gay couples. If the baker’s beliefs are contrary to our current societal beliefs, that will solve the issue. If a restaurant had a “white’s only” sign, most white people would not eat there.

    1. When you are hiring the various services for a wedding, you hire persons who you believe support the wedding and want to make it the best event possible.

      Exactly how would I know this? I’m going in, pointing at a picture of a plain cake, and handing over a credit card. Exactly which step in this transaction do I ask “are you a bigot?”

      And what process does the baker go through to vet their customers? Do they have a questionnaire that asks if the potential customer committed sodomy? How about being divorced? Or do they regularly wear clothing of different fabrics? Considering that Bakersfield is heavily agricultural – I’m sure someone coming in would be asked if they plant their crops side by side. Because if you do that means no cake!

      market forces are sufficient

      Bakersfield, CA, is a deep red city. Its not inconceivable that every baker in this city of 300k would deny selling a wedding cake to a same sex couple for their so called “strongly held beliefs”.

      If a restaurant had a “white’s only” sign, most white people would not eat there.

      *face palm*

      1. “And what process does the baker go through to vet their customers? Do they have a questionnaire that asks if the potential customer committed sodomy? How about being divorced? Or do they regularly wear clothing of different fabrics?”

        I’m really getting tired of this argument. There is no requirement that a religious person be doctrinally consistent in the exercise of his religious beliefs. A Jew can, for example, decide that he’s going to keep kosher but not observe Shabbat. That doesn’t mean he loses his right to keep kosher, as long as that belief is sincere.

        “Bakersfield, CA, is a deep red city. Its not inconceivable that every baker in this city of 300k would deny selling a wedding cake to a same sex couple for their so called “strongly held beliefs”.”

        Yes, it is inconceivable. Most people don’t care anymore.

        1. I’m really getting tired of this argument. There is no requirement that a religious person be doctrinally consistent in the exercise of his religious beliefs.

          My impression is that regexp is saying that a baker who refuses to bake a cake for a gay wedding because gay marriages are sinful will not refuse to bake a cake for the wedding of divorced people even though he may believe that remarriage in this case is sinful. And he will not refuse to bake a cake for people who commit other acts he regards as sinful, so he is a hypocrite. However, the answer is that the baker is not refusing to make a cake for a sinner but rather refusing to make a cake that celebrates sin.

          Furthermore, when the divorced couple walks in they typically do not mention anything about having been previously divorced and when the baker is baking the cake there is no element in his mind of expressing approval of remarriage. The same would be true if the gay couple didn’t ask for any gay imagery and didn’t announce that the cake was for a gay wedding. However, their primary goal is not to get the cake, but rather to punish those who differ with them and to spread a climate of fear among those who might try something similar, in the same way as the KKK might leave a burning cross as a warning.

          1. Right. Not to mention that even if he does regard divorcing as sinful, there is no requirement that you consider every sinful act to be equally sinful.

      2. “And what process does the baker go through to vet their customers? Do they have a questionnaire that asks if the potential customer committed sodomy? How about being divorced? Or do they regularly wear clothing of different fabrics?”

        I’m really getting tired of this argument. There is no requirement that a religious person be doctrinally consistent in the exercise of his religious beliefs. A Jew can, for example, decide that he’s going to keep kosher but not observe Shabbat. That doesn’t mean he loses his right to keep kosher, as long as that belief is sincere.

        “Bakersfield, CA, is a deep red city. Its not inconceivable that every baker in this city of 300k would deny selling a wedding cake to a same sex couple for their so called “strongly held beliefs”.”

        Yes, it is inconceivable. Most people don’t care anymore.

      3. The entire premise of the dispute is that the baker knows the couple is gay and is sharing the religious beliefs with the couple. If the baker doesn’t think it’s important enough to determine if it’s a same-sex wedding or keeps their beliefs private, the issue never arises.

        I suspect there might be some bakers who would not make wedding cakes for second marriages too.

        As for other private activity, a baker is not part of anything but the wedding ceremony — thus the baker will not have a compelled speech claim based on other conduct that the baker is not part of.

      4. re: If a restaurant had a “white’s only” sign, most white people would not eat there.
        *face palm*

        Actually, that statement is entirely defensible. Multiple studies analyzing the historical progression of civil rights legislation shows that it is only passed after the tide of public opinion has already shifted. Markets are in fact highly effective at and even necessary to the shift in attitudes necessary to get a legislative majority. Legislation only ever has the chance to affect the last couple percent – suppressing the minority whose prejudicial beliefs are so strongly held that they outweigh rational self-interest.

        This finding has been consistent across multiple jurisdictions, cultures, legislative environments and sources of discriminatory attitude.

        1. Well, drat. I messed up the tags. Please read the above as if everything italicized were not and vice versa.

      5. “Bakersfield, CA, is a deep red city. Its not inconceivable that every baker in this city of 300k would deny selling a wedding cake to a same sex couple for their so called “strongly held beliefs”.”

        It is inconceivable. The very bakery at issue in the complaint (Tastries) had previously served to gay couples. There are dozens of churches in Bakersfield that serve gay weddings. 1/4th of its voters were against Prop 8, and I don’t sense that baking draws disproportionately hetero/conservative business owners.

        1. “and I don’t sense that baking draws disproportionately hetero/conservative business owners.”
          If I saw a female baker with a shop called “Tastries” that among other goods created wedding cakes I would indeed estimate the probability that they are heterosexual and conservative to be slightly higher than the base rate in the surrounding population.

          On the other hand, if I observed the exact same pattern except the baker was male, I would estimate the probability that they are homosexual to be much higher than the base rate in the surrounding population (and my probability estimate that they are progressive would be based largely on the homosexual segment of the surrounding population)

      6. Exactly how would I know this? I’m going in, pointing at a picture of a plain cake, and handing over a credit card. Exactly which step in this transaction do I ask “are you a bigot?”

        The point where they say, “Hey, we don’t actually want to make cakes for gay weddings” probably should be a big flashing clue. It really shouldn’t take Sherlock Holmes at that point.

        And what process does the baker go through to vet their customers?

        None, presumably. If the baker doesn’t know about an issue, it doesn’t present any religious issue for him. Also, setting aside your misunderstanding of the various biblical rules, almost none of your examples make any sense; these bakers aren’t refusing to serve people, but events. Unless the customer is asking for a “Yay, shatnez!” cake, the issue is irrelevant to the baker.

        market forces are sufficient

        Bakersfield, CA, is a deep red city. Its not inconceivable that every baker in this city of 300k would deny selling a wedding cake to a same sex couple for their so called “strongly held beliefs”.

        I think it’s pretty inconceivable.

    2. Ramer,
      You do state the libertarian position fairly. “Businesses should be free to discriminate. Market forces will reward or punish, accordingly.”

      It’s why I don’t vote for consistent libertarians in elections. And why libertarians like Rand Paul end up not being libertarian at all, once they run into issues where the results would be something they’re opposed to.

      1. Right, because you’d rather have the government use its guns to enforce your personal policy beliefs.

      2. Right, you prefer slavery over freedom.

    3. Exactly what happened in Oregon with ‘Sweetcakes by Melissa’. They closed their storefront before the state had even reached a ruling. Seems the people of Oregon don’t even what to buy cookies from a place that is known to be a civil rights discriminator.

  6. Third, under contract law, you cannot get specific performance for personal service contracts because the courts recognize that they cannot monitor such services to address whether someone put their full effort etc. This I think gets at the same thing ruled here — the law should not compel someone to engage in expressive conduct. And while I would not argue most food preparation is expressive, wedding cakes in a class by themselves given the important role they play in weddings. It is not just food preparation for an important event — the cutting of the cake is part of the overall ceremony. Which is why so much effort is put into selecting a baker (see my first point) and put into actually creating the cake.

    1. “Third, under contract law, you cannot get specific performance for personal service contracts because the courts recognize that they cannot monitor such services to address whether someone put their full effort etc. ”

      I thought it was because it would be service, and involuntary…

  7. Like this is going to last long. This is within the progressive 9th Circuit and will be overturned forthwith.

    1. This was a decision of a CA state law court. It will be appealed to a state appellate court, and then possibly to the CA Supreme Court.

      1. Which are worse than the 9th circuit.

      2. This was a decision of a CA state law court. It will be appealed to a state appellate court, and then possibly to the CA Supreme Court

        Same difference. Probably worse, as Bob pointed out.

      3. And then possibly to SCOTUS under federal/constitutional question. The ruling was based on the First Amendment, not the state constitution equivalent.

    2. The ruling in Masterpiece will likely determine the eventual outcome of this case.

      1. This would imply the likely course of the California Court of Appeal, once it takes tghe case, is to wait for the Supreme Court.

  8. “By the way, I take it that it’s clear that the Free Speech Clause issue can’t turn on whether Miller’s belief “is part of the orthodox doctrines” of many religions…”.

    Why not? In Heller, certain restrictions on the RKBA are allowed precisely because they are ‘orthodox’….

  9. “creating wedding cakes with no text or symbolic design on them is not. (In this case, the couple selected a preexisting design, and “did not want or request any written words or messages on the cake.”)”

    If there’s no text or symbolic design, what differentiates it from a plain cake at the grocery store? And if that’s all that’s required to invalidate the first amendment, I can think of plenty of reproductions (existing design) that’d be banned for being trash. Prohibition on Garden Gnomes, anyone? I see what you’re trying to do here, but I think the consequences of this path of logic is not what you’d intend.

    1. A pre-existing design is not necessarily a plain cake. The most traditional wedding cake imaginable (a multi tier cake with fancy icing and possibly other embellishments) is hardly plain.

      A work need not be unique to be creative. Many graphic artists produce work that is reproduced ofen widely, including traditional forms like lithographs and wood cuts.

      1. I’m not sure if a good you can select from a catalogue is clearly creative expression.

        1. I agree with what you are saying up to a point. If a photographer or a painter sells mechanical reproductions of her work I don’t think each reproduction is creative expression. If she re-paints or re-photographs the same setting, is that creative expression? I think it is. The cakes are not reproduced mechanically. Each one has to be made by hand the baker or someone under the direction of the baker.

          Music is another example. If Jim Croce were still alive and re-recorded “Operator” would that be the same as a CD of the original recording?

          1. I dunno. I sell limited edition prints of my photographs. Everything except my signature is reproduced mechanically. But I would be at a loss to understand why one of those prints should be singled out as uncreative, vs. any other.

            Also, the fact is, everything creative in making a photographic image is done either from behind the camera or at the computer. After that, even if only 1 print were made, and sold like an original oil painting, the process to make the print these days would be the same as for every print in a limited edition.

            Would one copy of a book be original expression, and all the others not?

            Beyond that, while I’m heartened EV recognizes the creative expression in photography, and convinced it is at a far higher level than in cake baking, I’m also mindful that my conviction is founded in my complete ignorance of cake baking. I have heard from a lot of people who are ignorant of photography. I’m not comfortable with the distinction.

            1. Stephen I think this is one of the things we actually agree upon. The act of mechanical reproduction is not creative expression. But a reproduced photo is a creative expression. The point I was trying to make is that I think each cake is like each original photo. There is no method to reproduce a cake short of actually making the cake. If there were then you could just go buy a licensed copy of a wedding cake and no one would care. Just as someone could buy a licensed
              copy of one of your prints and use it in whatever non commercial way that they wanted. They could not force you to create an original photograph however. At least that’s my take on it.

        2. Why not? A book I select from Amazon (a really big catalog) is clearly protected by the First Amendment even if it’s in its eleventh edition and I’m buying the four-millionth copy. The ‘catalog test’ clearly fails as a filter for creative expression.

  10. The state cannot have a compelling interest in cake.

    1. The state cannot have a compelling interest in coffee.

      But yet, blacks had the right to sit at the Virginia Woolworth’s and drink coffee.

      I get that you are speaking as a non-lawyer, and you’re doing your best. But your comment is sort of silly. (Would you have been fine if a bakery has said, “No Jews allowed!” to a customer coming in, under your theory of “It’s only a doughnut, after all.”?)

      1. And it was a mistake, as Goldwater pointed out at the time.

      2. Yes, I would have been legally fine with it, even if I wouldn’t like it. I don’t think i have a right to buy a doughnut from somebody who doesn’t want to sell one to me.

      3. The interest in that case was, at least, food generally. However, Eugene and others allowing the state to define its “compelling interest” however they wish changes strict scrutiny into the rational basis test, just with better buzzwords.

        Indeed, I am not a non-lawyer, and the abdication by Prof. Volokh and others in these cases will generate very bad precedent not only in First Amendment cases, but anywhere strict scrutiny has previously been applied. By allowing the state to define its interest as “preventing discrimination against its citizens” generally, Volokh opens the door to every single government act, no matter how tenuously connected to the welfare of its citizens. He allows the government to define the group being discriminated against and define its interest in the most favorable terms possible, without questioning whether that interest exists, is being promoted by the legislation, is a narrowly tailored interest, and if the solution is also narrowly tailored.

        1. Well, if you’re not a non-lawyer, what aren’t you?

  11. “There could not be greater form of expressive conduct.”

    Seriously?

  12. In the same sentence you suggest that a wedding cake with a “symbolic design” might be protected and then say that in this case the cake did have a ( preexisting) design. Why does it matter if the design is preexisting? It’s a design the baker created and recreating it is still artistic expression.

    1. if the design is pre-existing, the speech had already been spoken, so to speak.

      1. I wasn’t aware that the First Amendment only protected the first instance of wholly unique works.

      2. Yet copyright of an expressive work continues even if it is a copy of the original so too for a design. Or are you saying that anyone can make a copy of an expressive original work and use it however they want.

    2. If that employee doesn’t want to make it and asks for religious accommodation then another employee can do it. ‘Star Trucking’. That doesn’t relieve the business itself from obeying civil rights laws.

  13. “We can force you to design and bake a gay wedding cake!” – First Amendment Scholar Eugene Volokh

    also First Amendment Scholar Eugene Volokh

    “We can’t force you to put a gay wedding cake topper on top of the gay wedding cake we forced you to design and bake!”

    1. also First Amendment Scholar Eugene Volokh

      “We can’t force you to write ‘Congratulations Jose and Bob’ on the gay wedding cake we forced you to design and bake!”

      1. also First Amendment Scholar Eugene Volokh (by omission): Freedom of religion? Where’s that in the First Amendment?

        1. I think that’s actually Sasha Volokh, who has argued that courts should read the Free Exercise Clause out of the Constitution, on the grounds that everything useful that it might do can be done by the Free Speech Clause and/or the Equal Protection Clause, and that it only serves to perniciously continue the Founders’ valorization of religion over equally valuable activities, like pushpin.

      2. From what I can tell, Eugene likely believes neither a pair of same-sex figurines or “Congratulations Jose and Bob” on the cake constitutes compelled speech. The baker would put figurines and a congratulations message on the cake of an opposite-sex couple, so he isn’t objecting to a message other than the fact the couple are the same sex (which he objects to with a non-customized cake). What would constitute compelled speech is a rainbow flag on the cake that celebrates gay pride, something the baker wouldn’t provide for any customers.

        All that being said, there is no need to reach those hypotheticals in either this case or Masterpiece.

    2. also First Amendment Scholar Eugene Volokh

      “We can’t force you to take a picture of the gay wedding cake we forced you to design and bake!”

      1. Not sure why you find these distinctions so hilarious. No one is forcing anyone to open a certain business. But California, like most states and the federal government, has an antidiscrimination law that prohibits certain businesses from discriminating on the basis of certain protected class–relevant here, sexual orientation. Lest everyone get around these laws by claiming that their business activity is free speech, there must be some line drawing as to what counts as expressive conduct. Volokh’s distinction seems pretty good to me. Merely baking a cake with no message on it doesn’t strike me as expressive.

        Note that this baker can now claim that she views blacks as less than equal and therefore doesn’t want to bake cakes for them because doing so would suggest that she views them as worthy of her cakes.

        1. “Note that this baker can now claim that she views blacks as less than equal and therefore doesn’t want to bake cakes for them because doing so would suggest that she views them as worthy of her cakes”

          Completely wrong. The claim here is that something about the cake itself, not the customer, involves compelled speech.

          As has been pointed out ad nauseum, in every case this comes up, the issue is not who is served but what is done for them. The same baker would gladly bake a birthday cake, or loaf of bread or prune danish for the same gay couple.

          To make the cases parallel, you would have to have a baker who said, I will not sell a Kwanzaa cake, because I believe that is a made up holiday. But African Americans can buy anything else I sell.

          1. ” I will not sell a Kwanzaa cake, because I believe that is a made up holiday.”

            Or, I will sell you that cake if you plan to serve it at a black pride event, but not at a white pride event, because I don’t want to participate in the latter.

          2. Yes, this has been “pointed out” ad nauseum, literally. It has also been rejected fairly universally. This is more obviously discrimination on the basis of sexual orientation than Loving was discrimination on the basis of race.

            1. If two straight males went into the baker and asked the baker if he would design a same-sex wedding cake for their same-sex wedding.

              What would the baker do?

              1. I don’t know. But two straight males don’t get married to one another. What’s your point?

                1. Well, currently they don’t. But since there’s isn’t a requirement for two males actually be same-sex attracted to get same-sex married, I could imagine it’s going to happen.

                  But you can’t use your cognitive abilities to predict what the baker might do in that case?

                  Can you try? Two straight males ask the baker to design a same-sex wedding cake for their same-sex wedding. What do you suppose might happen?

                  Do you think the baker would welcome the task and design the same-sex wedding cake for the two normal males?

                  1. The are certainly government provided benefits to married couples that unmarried pairs cannot obtain. Some such weddings seem highly likely in the future

                2. Suppose a gay and a straight couple want to purchase a cake for the straight couple’s wedding reception. No problem. But if the same customers want to purchase the same cake to celebrate the gay couple’s marriage, the baker won’t sell them the cake because she doesn’t want to participate in a gay marriage celebration. She’s not discriminating based on who the customers are, but based on the message the customers wish to express.

                  And California says that that’s illegal. The baker would be free to refuse to sell the people a cake if she disapproved of most other messages that people want to express with cakes, but not based on a disapproval of gay marriage. That’s a content-based speech restriction.

                3. I could think of reasons that two straight males might get married (although, I admit I would be a bit harder pressed to see why they would be interested in having a wedding with a wedding cake).

                  Perhaps a couple 90 year old widowers who had been life long buddies and have no family they care for or trust had bought a house together to spend the remainder of their days in. One day they are talking and realize that they really want each other to do some of those things gays had complained about NOT be able to do easily because they couldn’t be married. For example, make end-of-life decisions for each other, visit each other in the hospital without question, or be a default heir if they die intestate — all without legal contracts and documents that might be subject to nit-picking by lawyers. Perhaps both want to make the other the beneficiary on their pension (they both waited for a very long time to start taking their pensions and are very optimistic gentlemen but realize it’s remotely possible one of them may someday suffer a double malfunction when skydiving). The obvious solution they realize is, “Hey,lets get married”.

                  1. This is not so fanciful at all. Imagine two sisters who are widowed and decide to move in together. Being “married” can have many legal advantages. (Some on the state level. In NY, for example, rent control apartments can be taken over by spouses.)

                    1. “Imagine two sisters who are widowed and decide to move in together. Being “married” can have many legal advantages.”

                      It would be illegal for the sisters to marry each other in all 50 states, because they are sisters.

                    2. Why can’t two sisters gay marry each other? What’s the legal justification for stopping gay consanguinal love?

                4. and to add (darned comment length limits)…

                  Of course, I see no reason why, in the eyes of the state, marriage should be anything other than a convenient set of prepackaged contractual agreements creating obligations and responsibilities related to legal and financial matters. Therefore, I see no reason that any two people, including siblings (of the same or opposite sex), adult offspring and parents or grandparents shouldn’t be able to get married (note though that I do see a state interest in banning procreative sex between such people regardless of if they are married or not). Actually, I don’t see why any N people shouldn’t be able to get married in any number of overlapping sets of two or more members each — but, from a practical matter, all our laws are written to accommodate binary marriages and it would be very difficult to quickly change all the laws (and administer them) to handle the case of more than two spouses.

                  Which raises an interesting question… What possible interest does the state, have in disallowing marriage or sex between two siblings who are both biologically of the same gender or who are of differing genders but unable to procreate due to age or permanent sterilization. Show your work and “It’s yucky” is not an acceptable answer (it is “yucky”, but a lot of other legal things are also “yucky”).

            2. 12 inch,
              I agree with you, but you were arguing with yourself, I think. No one is focusing on who the actual customer. For instance, in the actual case . . . if **I** had come into the shop (a straight white male, along with my wife) and we had tried to order and pay for the same cake–the wedding cake for our gay friends’ wedding–there would have been the same problem. The baker did not want to sell a cake for a gay wedding, and I don’t think he would care a bit who the actual customer in his shop was.

              (Obviously, if a straight couple had gone into his shop, ordered a standard wedding cake with no added decorations and/or message, paid for it, and later picked it up; the baker never would have known it was being made for a gay wedding.)

              1. I find none of this remotely persuasive. If you are against same-sex marriage, you are discriminating against gay people. I am not sure that point is even contested. The question is whether the baker’s First Amendment rights require an exemption that permits her to so discriminate.

                1. If I am against rap music and videos, am I discriminating against black people?

                  If I am against Brit Milah, am I discriminating against jew people?

          3. But the customers only wanted a wedding cake. If some moron told me they didn’t sell ‘gay wedding cakes’ I’d just reply ‘I’ll take one of the straight ones then”. FYI they look exactly the same and just like I can buy my Kosher beef to use in a bacon cheeseburger without discrimination so can the person asking to buy what the business actually sells and use it in ways consistent with their own beliefs even if that includes marriage regardless of the couple’s sexes.

        2. No one is forcing anyone to open a certain business. But California, like most states and the federal government, has an antidiscrimination law that prohibits certain businesses from discriminating on the basis of certain protected class

          Seems like it’s more than just certain businesses. They used to be called public accommodation laws, but what’s public accommodation about wedding cakes? Why is it that cake baking is so important that another baker down the street couldn’t do it? I think we need to go back to the intent of the public accommodation laws. And seriously, what harm is there in allowing a cakery to limit it’s customer base?

          1. A fair point. The Unruh Act may apply to all businesses.

            Your substantive point is a policy one, with which I might agree, though that argument is easier to make when you’re not on the ass end of one of these protected classes. (As a white, straight, male, I don’t face this problem often.) I still don’t think that, once the law is passed, a baker should get an exemption on First Amendment grounds from baking a cake for a same-sex marriage.

            Also, note, if cake baking is so unimportant, then perhaps the baker should just bake the damn cake. Seems like totally a commercial endeavor to me.

            1. Also, I think a bakery would have a stronger argument if all they did was bake wedding cakes. That might suggest some sort of expressive message and endorsement about weddings. Here, the bakery bakes all sorts of good for every occasion, except same-sex weddings, apparently.

            2. MDJ,
              I’m happy at the result, but I think I disagree with you. I think it’s very likely that this same baker would have refused to do a wedding for a neo-Nazi couple, or for a Klu Klux Klan wedding, etc.

              I’m actually sort of surprised that no one (as far as I know, and I expect that the Internet would have publicized) has gone into a Jewish bakery and asked it to make a wedding cake for a Nazi-themed (or Holocaust themed) wedding . . . just to make a political point and to torment the innocent bakers. Thank goodness for small things.

              1. ” I think it’s very likely that this same baker would have refused to do a wedding for a neo-Nazi couple, or for a Klu Klux Klan wedding, etc.”

                Maybe there will be a test of this one day. But the outcome won’t depend on the ruling in /this/ case.

                (even assuming it holds up on appeal, of course)

              2. What would be the suspect class there? I don’t think Unruh protects Nazis or the Kl Klux Klan.

                1. I don’t know how they feel about the Jews, but the Westboro Baptist Church could certainly do something similar at a bakery owned by a gay person.

                  1. The gay baker would have to swallow his or her bile and sell the Westboro assholes off-the-shelf pastries. S/he would /not/ have to bake a “Jesus-hates-gays” cake.

                    S/he might — though — be able to throw them out of the shop on the grounds that they were — by virtue of identifying themselves — harassing or stalking.

                    1. How is it harassing for a Westboro Baptist Church member to identify themselves? Douchebags have rights too, and just because a group is rightly unpopular can’t make it harassment for them to identify themselves.

                      Would the gay baker have to create a custom wedding cake lacking any writing or symbolic expressions? Would the gay baker have to show up at the actual Westboro Baptist Church to set up the cake for the reception?

                    2. jph12: “How is it harassing for a Westboro Baptist Church member to identify themselves? ”

                      You’re right on that. I was thinking of something along the line of the Westboroites coming in and saying “We’re the anti-fag church. We know you’re a queer baker and we want a cake that says ‘Jesus hates fags.’ We’ll stay until we get it.”

                    3. This cake case, if I understand it, is somewhere between selling “off-the-shelf” pastries and baking a custom “Jesus-hates-gays” inscribed cake.

                      In this case, it seems, the design was “off-the-shelf” from a catalog of options with no event specific customization but the cake would be baked “to order”.

                      As the baker was creating the cake and adorning it with the standard flourishes, they would know that it would be used to celebrate an event that was against their religious beliefs. Others in the community who knew that this baker only baked such cakes “to order” and knew this cake was baked by this baker (perhaps seeing the delivery van which delivered it or the box the cake came in or perhaps just recognizing the design from the bakery window) might reasonably infer that the baker knowingly provided the fruits of their artistic skill to this specific event and might well infer from that that the baker didn’t have any objections to the event.

                      This is a somewhat subtle distinction but when drawing a line somewhere in difficult cases such as this, such distinctions seem important.

                    4. No one asked for a cake with a specific message, e.g. if a store will make ‘no trespassing’ signs for one customer they can’t refuse the next because they wanting them because they are going to be used around a church or a nazi pool party.

                  2. Why would someone not sell to a customer just because of the church they belonged to?

                2. What would be the suspect class there? I don’t think Unruh protects Nazis or the Kl Klux Klan.

                  Prof. Bernstein has pointed out several times over the years this case, which suggests otherwise.

  14. Professor, from your amicus brief, I though your position turned on whether the cake was a “pre-designed” or “custom-designed” cake, but your post today suggests you are arguing baking is per-se non-expressive. Did I mis-read your brief?

    1. No, he’s gone full Posner.

  15. Good for the court for getting this one right.

    “While creating photographs, videos, and text would be constitutionally protected speech (so we support the right of, for instance, photographers not to photograph same-sex weddings), creating wedding cakes with no text or symbolic design on them is not”

    I find this really hard to accept. Wedding cakes are an accepted symbol of celebration of a wedding in our culture (America in the early 21st century). Google “wedding cake,” click on images, and you will see hundreds of cakes that look very similar — and all evoke the same thing “A wedding is being celebrated.” Wedding cakes are made a certain way to evoke that symbol — if all you want is dessert, you can make a simple cake and carve it up for the guests.

    The American flag is also a widely recognized symbol. Could the government force a flag maker to make an American flag?

    1. Here is a thought experiment. John and Jane are planning their wedding. John’s mother, known for being tight with the money, says, “Why don’t we just skip the wedding cake. It’s usually pretty dull and boring. Even Justice Gorsuch thinks so. We can save a lot of money and just serve chocolate mousse or fruit cup.”

      What would be the likely reaction?

      1. If the fruit cups are mostly pear, then chaos. Unless there’s an open bar. That makes up for a lot.

    2. Here’s another one. If the wedding cake was “just dessert,” why would anyone pay $1,000 (or more) for it instead of buying a $25 sheet cake from the local grocery store?

      1. Is it covered in gold leaf with diamond decorations?

    3. Could a flag maker not sell a flag to a Muslim because he sees Islam as incompatible with patriotism? The problem with this is where does it end? Could a hair stylist deny a style because the customer will be participating in a SSM? Can a limo driver deny a ride because the couple is going to a SSM? It seems like we are treading very close to a slippery slope

      1. Since you are posting on Professor Volokh’s blog, are you sure it meets his definition of “slippery slope”? (Sorry, I can’t help you, I never made it through all 112 pages of it — although I think there’s a short version somewhere).

      2. The problem with this is where does it end?

        With individual liberty?

      3. The problem with this is where does it end?

        With individual liberty?

  16. creating wedding cakes with no text or symbolic design on them is not

    I assume this has in mind the person who walks into the bakery owned and run by a devout Muslim, tells the baker that he would like a cake for use at his upcoming Satan worship ritual, and hands the baker this design for the cake. Can the baker refuse? If so, what about a design involving two grooms?

    1. hands the baker this design for the cake. Can the baker refuse?

      This already happened in Colorado. A conservative group walked into a bakery and asked for a cake with anti-gay messages written on it. The baker baked them a cake and gave them the frosting to write the messages themselves. The conservative group filed a complaint and lost.

      Not hard to act like a grown up is it?

    2. The fact that you could not keep your facts parallel to this case, and had to insert a particular design for the cake, shows you know the problem with this fact pattern.

      1. So you would say that a baker would be within his rights to refuse to make a rainbow cake or a cake with two grooms? Can he refuse to make any kind custom cake but only supply off-the-shelf cakes?

        1. There is no such thing as an off-the-shelf wedding cake. Cakes are perishable and there are too few weddings for bakers to keep already made wedding cakes sitting around.

          All wedding cakes are made to order, whether it’s a custom design or a standard design.

          1. There is no such thing as an off-the-shelf wedding cake.

            I think what is meant by an “off-the-shelf” cake is one that uses a standard design that the bakery creates over and over. The bakery probably churns out at least one a week using this design and there is no unique expression involved. So the activities of the baker more resemble going to the shelf and getting the cake than anything involving expression or creativity.

            1. “I think what is meant by an “off-the-shelf” cake is one that uses a standard design that the bakery creates over and over.”

              You think wrongly, in retail in general, the term off-the-shelf refers to a pre-manufactured product that sits on the store shelf waiting for a customer to come in and buy it as-is.

              A bakery may have off the shelf general purpose cakes, but they do enough volume in general purpose cakes that few cakes will spoil before being sold.

              Made to order goods are not off-the-shelf regardless of whether it’s a pre-exising design or not.

              1. And every food item is custom made to that same extent. This idea that because you have to order something before its actually put together can’t be sufficient to deny someone their civild rights protections.

                1. “And every food item is custom made to that same extent.”

                  1. Custom made is not equal to made to order.

                  2. Ready to eat snack foods are not made to order.
                  Even in a restaurant:
                  a) the fixings available on the salad bar are not made to order.
                  b) Soups are not made to order, they are made in bulk and kept hot.

                  3. Not every food item is made as an art piece. Cakes and other desert items frequently are made explicitly as art pieces. It’s the fact that it’s an art piece not the fact that it’s made to order that makes it protected expression.

  17. This issue pits what SHOULD we do versus what MUST we do. Or, when do we have the right to say “no.”

  18. They all want cake.

  19. I’d encourage everyone to read Pro Volokh’s amicus brief. The argument isn’t as bad as it sounds.

    The brief lays out the legal standards on page 6. Running through the analysis is the idea that the asserted speech is not particularized – thus the first enumerated legal standard is said to be not satisfied.

    It is well-established in our culture that a wedding cake can be created with an intent to celebrate a wedding and the cake is understood to be celebratory of the wedding (in a way different from the cookies, the vegetarian dish, etc). I think the question that the Profs are answering is whether the party-goers understand the cake itself to be a particularized expression or just a cake, meaningful only because it is at the wedding. I think this is true even if we look to the the couple ordering the cake. Do they understand the cake to be a particularized message by the baker (eg your wedding is special and laudable imho) or just an artistic pastry with particular importance to them? I think the couple doesn’t take the baker’s feelings into account and views it as the latter. There is emotional dissonance here as the couple demands creation of the wedding cake because of its importance, but that is not relevant to the legal analysis. So I must agree with the Profs, at least on the first test.

    1. The Profs’ argument based on the second test lumps symbolic cakes with pastries generally and without a historic practice recognizing pastries as speech, symbolic expression doesn’t matter (page 9). As suggested in my first comment, distinctions between photography, words, and wedding cakes aren’t coherent. This is rationalized by the “historic protection” argument, bolstered by the argument that “Cake baking, though, is not inherently expressive” (page 9). If a baker think s/he is expressing praise of a wedding, s/he is mistaken. S/he might need a big glass of milk to swallow that argument. It feels like speech but it tastes like cake.

      It’s quite a thing to demand someone engage in conduct they believe expressive, particularly when that conduct results in symbolic creation. If a craft store declined to sell black material that was to be used for armbands, would that be an expression of speech? Or declined selling white fabric to be worn by white supremacists? Are these acts not inherently expressive and thus outside 1st Amendment protection? The analysis says yes. So a law can force people to sell or produce items to be used to express something they fundamentally disagree with. This feels very wrong. But despite the incongruities of 1st Amendment law, I’m half-persuaded. I don’t think it is wise or correct to shoehorn all infringements of liberty into the Free Speech Clause merely because it has been so capaciously interpreted.

    2. This argument conflates the compelled speech doctrine with the expressive speech doctrine. When the speaker is taking a voluntary action that is intended to be expressive, it only gets First Amendment protection if the average person would understand it to be expressive. That is where the particularize message requirement applies.

      But when you are compelling someone to engage in expressive conduct, under Hurley the particularized message requirement goes away and the issue is simply whether you are compelling them to do some thing that qualifies as expressive conduct.

      1. But the question at the outset is whether the thing is expressive conduct. It is a compelling argument that baking a cake is not speech activity because it doesn’t look like speech as historically recognized (ie it is a pastry) and is only expressive due to externalities (ie its appearance at a wedding). The cake itself doesn’t speak. So when a couple goes to a bakery, they are simply asking for the baker to make them a nice cake. That it will be used at a wedding or a birthday or a going away party shouldn’t change anything for the baker.

        I think Kennedy will carve out an exception because the government interest/means go too far and tramples on religious freedom (which is the real complaint anyway). I’m not sure how that is done in a coherent way, but like I said, I think Kennedy will write it.

        1. “and is only expressive due to externalities (ie its appearance at a wedding).”

          I will quibble with this. Many cakes other than wedding cakes are produced as edible art pieces and are thus expressive in their own right regardless of any externalities. While some may not be, the majority of wedding cakes even if not one-off are art pieces.

          art cakes

        2. I agree the issue is whether baking a cake is expressive is the key issue — but that determination will not be under the same standard as an expressive conduct challenge that does not also involve a compelled speech claim. That means it is not necessary to prove that the audience would understand the baker’s particularized message.

          And I readily concede the issue is a close one. I think you can distinguish a wedding cake from almost any other food, both because of the effort it takes to bake, the final product’s elaborate appearance and most importantly the baker’s belief that the final product will play an important symbolic role at the wedding reception. Without all three aspects, it would be a lot harder to argue it is expressive.

          1. I’m not seeing how courts can apply your standard to distinguish other food providers along with the hair stylist, makeup artist, tailor and wedding planner. All of them will argue they put in a lot of effort, produced an elaborate product, and play an important role.

            Moreover in this case involving a preexisting design, the amount of effort might not meet your standard. Ditto for Masterpiece where the baker rejected the customer without considering any designs.

            1. Here’s what distinguishes it: Most wedding cakes are made as art pieces (unique one-off or not). None of the other food at a wedding is made explicitly as art.

              1. Matthew, I think you begged the question. In particular, the service providers in all of my other examples claim to be making art as well. What’s the standard for accepting or rejecting each service provider’s claim?

    3. “I’d encourage everyone to read Pro Volokh’s amicus brief. The argument isn’t as bad as it sounds.”

      Sorry, but I couldn’t help giggling. It reminded my of Mark Twain’s quoting William Nye to the effect that “Wagner’s music is much better than it sounds.”

  20. And Judge Aaron Perksy thought he was having a bad year. Lampe is probably going to get recalled, tarred, disbarred and feathered.

  21. While I appreciate the warm fuzzies… seems a bit degrading to tradition of wedding cakes to rule them not not a symbolic statement.

    Would it be more dignified for the bakery to hand over the cake and say “by the power vested in me by the Supreme Court, I declare this cake to be non-symbolic speech”

  22. 1. Unlike a celebrant, a singer, photographer or videographer….the baker is NOT part of the ceremony. Even if the baker participates in the cake setup, this is at the reception. The baker’s connection to the ceremony is no greater than the rental business who provides tables and chairs for the reception, the hair stylist who provides pre-wedding haircuts, or the hotel operator who provides rooms for after the wedding. It is too attenuated and offers little practical limiting principle.

    2. Without specialized wording or decorations, a cake is a cake….with its principle purpose being to be eaten. Yes a cake can serve as a decorative piece….but not much more than a landscaper who creatively trims my shrubs….can a landscaper deny service because a SSM will be held at those grounds? Again, I’m not seeing much of a distinction….and we appear to be opening the door to significant discrimination which is in direct opposition to the intent of the state laws.

    3. Would the baker decorate a wedding anniversary cake for a same-sex couple or provide a standard cake for a celebration for a wedding vows renewal? Why are these any less attenuated from his deeply held religious views?

    1. Nonsense. Many event venues halls specify who their catering contract is with. It’s an essential part of the event. Nobody cares who cut the grass or who provided the chairs.

  23. “creating wedding cakes with no text or symbolic design on them is not.”

    I’m glad you put that in there, maybe I didn’t carefully read your first post on your cake Amicus brief, I did not see that proviso. But I don’t think it goes far enough, I think any custom design would pose first amendment issues, any stock design would not. I think its a pretty simple test. I also think that its would be pretty easy for a baker to get around the Unruh act or a similar law, just publish a brochure or have a folio with the stock designs the bakery will make, and have a disclaimer that any customization is up to the baker to decide how his creative juices are flowing before he takes any commissions that deviate from his stock list.

  24. Doesn’t the judge know? Bakers can’t be choosers.

    1. heh

    2. Bakers can’t be choosers.

      Well, I think that settles it.

      +1 Interwebz Mr. Toad

  25. I ask to the SJW. Can the government require that a person not discriminate when someone asks him or her out on a date? If not, why not?

    1. I’ve raised this issue.

      1. Atlanta Hotel implies the federal government has the same right in interstate commerce as the states do in domestic matters. If States cannot regulate sexual preference in domestic relationships,Atlanta Hotel would seem to imply the federal can’t do so in commercial ones.

      2. It also makes it hard to understand why there could be no rational basis for regulating sexual preference domestic relations, yet a compelling interest in regulating sexual preference in interstate commerce. One problem is there are many cases whose classification is disputable. Are prostitutes preferences sexual preferences or commercial business preferences?

      3. A second is consistency of rational. Why is peoples personal happiness a compelling interest in domestic matters, yet not even a “legitimate” one in business matters. Why are expressions of hate wrong in domestic matters, but perfectly OK in commercial ones? Courts have a habit of being really abusive to commercially gay people, calling commercial sexual preference a “scourge” which should be “eradicated”, saying such people have no “legitimate business imterest” in their own happiness, and lots of other really, really, really hateful language. It seems to me that if we accept that hate is not a legitimate basis for domestic relations legislation, we ought to equally sharp on the lookout for, and equally willing to strike down, these kinds of attitudes when present in commercial legislation.

  26. If a private cake baker doesn’t want to bake a cake in a non critical situation they shouldn’t be forced to end of story. It doesn’t matter what their reasoning is or what fever dream LBJ cooked up to do an end run around constitutional protections. I am baffled at how all these lauded ‘libertarian’ academics cannot grasp this.

  27. I’ve said it before, and I’ll continue to preach it.

    You have no Constitutional right to operate a commercial business. You do have a Constitutional right to freely exercise your religion.

    If the two conflict, because you refuse to follow the same laws as every other business owner must follow, then your only Constitutional recourse is to close your business down.

    You do not get to say you have a right to operate your business however you see fit and discriminate against anyone because of your 1A rights.

    1. So you’d be fine if we went around closing all businesses catering to atheists and gay people since once something enters into the realm of business the government has a blank check and can pretty much do whatever they want? Good to know.

      1. I’ve said it before, and I’ll continue to preach it.

        You have no Constitutional right to operate a commercial business.

        Absurd. The government has no legitimate interest in preventing you from operating a business. Especially not for hurting someone’s feelings.

      2. More goal post moving. ‘Catering to’ and ‘only serves’ are two very different things. If this business had let them buy what they sell, ‘straight wedding cakes’, and the customer decided to use it in a manner consistent with their own beliefs such as a ‘gay wedding reception’ that’s none of the business owner’s business.

        Do they sell ‘straight’ wedding cakes to the public or not?

    2. Actually, the right to own a business was considered to be fundamental at the time the drafters ratified the 14th Amendment (it was considered to be among the “privileges or immunities”). To say that a person has no right to make a living is to throw the Constitution on its head.

      1. While the SC may not have commented yet on this specific issue off the top of my head. Its pretty clear that effectively ruling that the government has free reign to stamp out your ability to earn a living whenever they feel like it, violates the spirit if not the letter of Constitutional protections and would open up a whole can of worms as opposed to the much saner option of scaling back the recent weaponization of public accommodations theory. One can hope that those smart enough to sit on the SC will see this although I wouldn’t hold my breath for Rip van Ginsburg and Co.

      2. Since there are many bakeries that don’t sell wedding cakes they aren’t being prevented from making a living any more than the Amish business owner who said it was against his religion to collect Social Security taxes.

        The court ruled in Lee that requiring others to act as if they shared the business owner’s beliefs would operates to impose the employer’s religious faith on others.

        I wonder what that business owner did when told he couldn’t require others to act as if they shared his beliefs – did he fire all his employees and become a one man shop or did his ‘beliefs’ suddenly take a backseat to his love of Mammon?

    3. “You have no Constitutional right to operate a commercial business.”

      And I have said it before and will continue to preach it. The state has no right to violate individual rights in the interest of commercial regulation.

    4. Paging Michael Hihn: This is your 9th amendment case.

    5. You have no Constitutional right to operate a commercial business. You do have a Constitutional right to freely exercise your religion.

      If the two conflict, because you refuse to follow the same laws as every other business owner must follow, then your only Constitutional recourse is to close your business down.

      You do not get to say you have a right to operate your business however you see fit and discriminate against anyone because of your 1A rights.

      First, this is a free speech case, not a free exercise case.

      Second, why are you talking about what you have the right to do, rather than what the government has the authority to do? Why does the government have the authority to tell you to violate your religious views in the operation of a business any more than in any other aspect of your life?

      Third, your argument proves too much. By your logic, you have a right to profess a belief in god, but you don’t have a right to operate a bakery, so therefore the government can require you to stop professing a belief in god if you want to operate a bakery. You have the right to vote Democratic, but not to operate a commercial business, so the government can say that you can’t operate a commercial business if you vote Democratic.

      1. If they couldn’t sell what they made to everyone without civil rights discrimination they wouldn’t be advertising to the public, a group comprised of all civil rights groups.

        They are the ones making fraudulent offers. At the very least they have to make clear their wares are not purchasable to everyone regardless of their civil rights class when they make the original offer.

  28. Separate from the question of whether the decision was correct, is it right for a trial court to reach a decision on an issue that is pending before the Supreme Court with a decision expected in a few months? Isn’t the correct thing to do to wait for an authoritative adjudication of the matter?

    I understand judges may obtain ego benefits from getting an opinion in first and attempting to persuade the Justices one way or the other. But how do the parties, and the justice system, benefit? If the judge is right the parties will have gotten a decision a few months early. And if the judge is wrong, there will have to be a lot of litigation and expense for the thing to be reversed.

    1. “is it right for a trial court to reach a decision on an issue that is pending before the Supreme Court ”

      I’m thinking the judge might possibly have been trying to get his two cents worth in, to perhaps nudge the decision along. But that’s just my reading of the tea leaves.

    2. The state sued the defendant for violations of California’s civil rights act and sought a preliminary injunction to force the baker to bake cakes for same-sex marriages. It’s hard to see how the court could have refused to issue the order without abdicating its responsibilities. Refusing to issue the order would have essentially sided with the baker because the baker is free to continue to discriminate absent the injunction.

      1. That makes sense.

        If the suit was merely for damages to be awarded to the couple in question, the court would have simply held proceedings in abeyance.

      2. I think the judge could have simply pointed out that the issue has resulted in a split among the lower courts which the Supreme Court is in the process of resolving, and because of this uncertainty, the state of the law simply is not clear cut enough to support so drastic a remedy as a preliminary injunction, but the state is free to revisit the case if the Supreme Court decides in their favor, and can seek an injunction then as well as damages, penalties, and other post-hoc remedies at that time. He could then have added a long footnote if he wanted indicating why he thinks the defendants have the better argument on the merits. But leaving the case on hold until the Supreme Court decides it rather than definitively resolving it is fairer to the State of California because it makes it easier to pick up if the Supreme Court indeed decides in their favor.

        This is the sort of issue people tend to have strong feelings on and strong ideas about which is the right result. It may be precisely the sort of issue where a neutral path based on reasoned consideration of the state of the law may be the fairest course. Just because we personally feel certain doesn’t mean the law is certain. Objectively, it isn’t.

        1. Punting on a preliminary injunction is no different than refusing to grant it–the baker wins either way. And the case is continuing, so the state isn’t under any prejudice based on this decision. They still have an opportunity to prove their case on the merits (possibly with the benefit of the Masterpiece Cake decision).

  29. This isn’t a 1st amendment case. It’s a 13th amendment case, government imposed involuntary servitude. Literally, the government is telling somebody they must provide a service to somebody they don’t want to. Baking a cake in this case, but it could have been anything. Picking cotton, maybe.

    I suppose the reason it’s difficult for the legal system to take this argument seriously, is because modern involuntary servitude, “public accommodations law”, arose from the efforts of the civil rights community to combat the legal system’s ultimate evil, racial discrimination. And started out being accepted because it was applied first only in hard cases. And only later got applied to absurd things like cakes and wedding photos.

    Because the sainted civil rights movement can do no wrong in the eyes of the legal system, their gradual transformation from monster hunter to monster went unnoticed, the legal system even followed in their tracks.

    1. That’s why forcing the baker to bake the cake outrages so many people, but the courts struggle to find any basis for objecting to it. The legal system can’t look in the mirror, and realize that it’s committing the same evil it started out trying to fight. It doesn’t have that degree of capacity for introspection. If anything, there’s a sort of anti-introspection going on, the very idea that forcing somebody to labor for somebody they don’t want to labor for could be a 13th amendment violation by the government themselves is violently rejected without analysis.

      So the subliminal understanding that there is an evil going on here has to seek other, less appropriate paths for expression. All because directly recognizing what’s actually at stake here is impossible for the people committing the wrong.

      1. Please address the attenuation and limiting principle issue from above:
        1. Unlike a celebrant, a singer, photographer or videographer….the baker is NOT part of the ceremony. Even if the baker participates in the cake setup, this is at the reception. The baker’s connection to the ceremony is no greater than the rental business who provides tables and chairs for the reception, the hair stylist who provides pre-wedding haircuts, or the hotel operator who provides rooms for after the wedding. It is too attenuated and offers little practical limiting principle.

        2. Without specialized wording or decorations, a cake is a cake….with its principle purpose being to be eaten. Yes a cake can serve as a decorative piece….but not much more than a landscaper who creatively trims my shrubs….can a landscaper deny service because a SSM will be held at those grounds? Again, I’m not seeing much of a distinction….and we appear to be opening the door to significant discrimination which is in direct opposition to the intent of the state laws.

        3. Would the baker decorate a wedding anniversary cake for a same-sex couple or provide a standard cake for a celebration for a wedding vows renewal? Why are these any less attenuated from his deeply held religious views?

        1. 1. Why does it matter whether someone is part of the ceremony itself or just a part of the celebration? The first wedding I tried to go to as an adult wound up with me missing the ceremony but making it to the reception. I still consider myself to have attended, and been a part of, the wedding. For most people, the reception is the important part of the celebration. The ceremony is just what you have to sit through to get to the reception.

          2. Perhaps, but I doubt this will lead to significant discrimination. None of the stories about any of the cases I’ve read have suggested that the couples had any problems finding the desired services for their weddings.

          And I dispute your characterization of the cake. If the only important purpose of the wedding cake was to be eaten, then it wouldn’t matter if the baker made a fancy tiered wedding cake or a simple sheet cake with the same ingredients. I doubt the couple would have been satisfied had the baker showed up at the reception with a big sheet cake.

          3. Who knows, and who cares? This case about speech, not religion. If we are going to require people to be consistent in their speech, pretty much the entire political pundit class is going to have to shut up.

        2. All that matters if you’re approaching it from a 1st amendment perspective. From a 13th amendment perspective, the only question is whether you’re making the service involuntary, not what the service is. Could be baking cakes, could be digging ditches, none of that matters.

          The only relevant question is whether you’re forcing somebody to work for somebody else against their will.

          1. States have the power to regulate intra-state commerce as they see fit. A business open to the public may be required to not discriminate as a precondition for operating. There is little different here legally than a business having to follow state health and safety regulations. If the baker wants to sell cakes publicly, then he must follow the law…..no one is forcing the baker to sell cakes publicly….it’s his choice….he just can’t discriminate.

            1. 1. States are not free to regulate intrastate commerce as they see fit. The Constitution applies to state regulations of intrastate commerce just like it does to everything else, and states have to comply with federal laws as well. Many of the Jim Crow laws were commercial regulations that became illegal with the passage of the Civil Rights Act. I’m guessing that you don’t believe it would be okay for a state to pass a law prohibiting any business from providing services to gay weddings (while requiring county clerks to provide marriage certificates so there’s no denial of the right to a marriage).

              2. By the absurd standards of the modern Commerce Clause, this is interstate commerce. Not just baking the cake, which almost certainly involves ingredients that have crossed state lines, but also weddings in general.

              3. Whether the state can force a baker to bake a cake for a same-sex marriage is an open issue currently being decided by the Supreme Court. It’s a First Amendment freedom of expression challenge, which makes it pretty different than previous challenges to health and safety regulations. The state’s interest in enforcing compliance is also completely different, which is relevant for these kind of things.

              4. The baker in this case is a woman, not a man.

        3. “1. Unlike a celebrant, a singer, photographer or videographer….the baker is NOT part of the ceremony. Even if the baker participates in the cake setup, this is at the reception.”

          This irrelevance keeps popping up. It should die a proper death.

          Let’s look at this from a different angle, just to keep from repeating ourselves.

          When Queen Elizabeth I died in 1603, William Shakespeare failed to commemorate her passing with a poem. We know that this is the case because he was criticized for the failure in print. It wasn’t that the poem would have been read at the funeral, or even that Shakespeare would have been expected to attend (he was unlikely to be invited). The point was that he hadn’t created a dirge for the departed monarch and many felt he should have (many others did — creating many truly forgettable pieces of glurge). But he didn’t /have/ to do it and apparently wasn’t paid to do it by any patron. He may have written such things for others (this is controversial) but he didn’t do so here.

          (continued below)

          1. (continued from above)

            Had WS been required to write a dirge, it would have been compelled speech, wherever it would ultimately be read or published. In those days speech was compelled left and right. There were offices set up (e.g., the Master of Revels) to ensure that published material said only the right things and in only the right ways, using approved words. People went to prison for writing the wrong plays and were killed for voicing the wrong opinions (public charges of atheism may have played a role in Christopher Marlowe’s killing).

            Today in much of Europe, one can be arrested for publicly stating the wrong thing (e.g., being a public holocaust denier or — in Poland — a holocaust affirmer), or one can be murdered by Islamists for insulting the Prophet Muhammad. But generally even there one does not have to actually /affirm/ things one disbelieves. To have to do that has been public policy in very few places — a major example being the period of thought reform and self-criticism during Mao’s cultural revolution. For most, that’s a bridge too far, even in countries that do not have First Amendment rights or sensibilities.

            (continued below)

            1. (continued from above)

              We do have First Amendment protections and first amendment (lower case) sensibilities. Many (most?) of us believe, with I. F. Stone, that “no society is good, whatever its intentions, whatever its utopian and liberationist claims, if the men and women who live in it are not free to speak their minds.” (“The Trial of Socrates,” preface). That includes not having to parrot the wider society’s approved opinion.

              But the cake baker /is/ expected to publicly affirm a same sex marriage — to the point of creating a work of art commemorating it — whatever his or her opinion on it, and whatever the basis for that belief, or be fined and lose the ability to take part in a trade. This crosses that bridge to compelled speech, which is the most egregious violation of free speech rights.

              And here we are.

              1. Is the florist, greeting card provider, hair stylist, jeweler, makeup artist, chef, tailor and sandwich artist likewise creating works of art and thus being forced to say things they don’t want to?

                1. I affirm this comment

                2. Josh R “Is the florist, greeting card provider, hair stylist, jeweler, makeup artist, chef, tailor and sandwich artist”

                  Can they make good cases that they are being compelled to speak against their own beliefs?
                  I won’t make their cases for them. The cake bakers have what I believe are compelling positions.

                  1. Pox, I think you missed the point of my post. If the bakers are creating a work of art, it seems to me all of the others are also creating works of art. But that conclusion guts anti-discrimination laws by permitting a wide range of service providers to claim compelled-speech exemptions.

                    Thus in order for your argument to work, either you need to distinguish my other examples from bakers in a manner that courts can apply, or you need to concede that a wide-range of service providers will be exempt from anti-discrimination laws and hope SCOTUS will accept such an outcome.

                    1. I got your point, Josh. I didn’t want to go into a lot more detail (see my response to Swood, which covers pretty much what I would say). I don’t think it is art, per se, that is at issue — though it’s an issue itself. It is having to make an actual statement (which can be a symbol) against one’s own beliefs. The cake baker, alone among them, is being required to craft a symbolic statement /expressly/ against her own beliefs. From my free speech position, that makes the difference.

                      Another way to look at it. My wife and I are a mixed-religion couple. One can’t refuse to sell a Jew a piece of jewelry. But one shouldn’t be required to create a ring expressly to commemorate the marriage of a Jew and a Gentile if that goes against the bastard’s beliefs.

                    2. Pox, why aren’t all my other examples also being required to make the statement that they approve of same-sex marriages?

            2. But generally even there one does not have to actually /affirm/ things one disbelieves.

              This is the crux of the question. What counts as affirmation? Selling a pack of gum? Giving a haircut? Baking a cake? Designing a cake having no imagery related to something that the baker does not wish to affirm? The limo driving the couple to the gay wedding? Why is compelling creativity the same as compelling affirmation?

              1. swood1000 “What counts as affirmation?”

                There are ultimately conflicting rights to reconcile, and there are limits. The case of the state coercing the cake baker clearly crosses lines.

                My short answer is that there is a “compelled speech” violation when a person is required to make some degree of effort to craft a statement against her beliefs. I harp on creating something (which is after all the issue in the present cases), because here the state’s attack on speech is so clear. The cake baker has to meet with the clients, agree on basic design, discuss the clients’ specific desires and determine how to incorporate them, gather materials, and then use her talent and training to actually make it happen. That’s a lot of mental work.

                Your other examples — not so much. Such folks might try to make a case, but they would have trouble showing that a compelled-speech line had been crossed. That includes “designing” a no-imagery cake, which is pretty much the definition of an off-the-shelf item — “wedding” cakes being largely matters of imagery and symbolism. None of the others require an explicit affirmation of anything in particular.

                I suppose a customer could demand something like a “Jesus hates fags” message in a haircut. That would make for an interesting case, and I would support the barber’s refusal to take on the customer.

                1. Pox, I replied above before reading your post which attempted to distinguish bakers from the others. I’m doubtful that your “degree of effort” standard is workable. All of my example service providers will claim, with data, they put in a lot of time and effort. How are courts going to distinguish these cases given the data?

                  Also, in this case the baker wouldn’t sell a preexisting design that didn’t go through the process you described. In Masterpiece, the baker wouldn’t even start the process and couldn’t know how long it would take. In both of these cases, it might be possible to rule that there was no compelled speech without having to address the tougher case you describe above.

                  1. Josh R: ” In Masterpiece, the baker wouldn’t even start the process and couldn’t know how long it would take”

                    This is an interesting point because the baker’s statement indicates that the conversation was shut down at the very beginning, but the gay couple’s statement indicates that he would sell them things besides a wedding cake.

                    So, to be clear — if the baker actually shut down the conversation at the beginning, then I’d withdraw my support of his position. He /has/ to sell off-the-shelf items. He /can’t/ be required to create a product.

                    1. Both sides agree that the baker shutdown any conversation of a custom-made cake and he would sell them an off-the-shelf product.

                      Nonetheless, the categorical rejection of any custom-made design suggests the baker has refused to make a cake that doesn’t qualify for First Amendment protection under your degree of effort standard.

                  2. Josh R: “All of my example service providers will claim, with data, they put in a lot of time and effort. How are courts going to distinguish these cases given the data?”

                    People would, of course run with this argument. That’s always the way these things work out. The states of Colorado and California took what seems to me to be fundamentalistic anti-speech positions in disallowing almost /any/ protection to personal conscience and speech. To me that can’t stand.

                    I’d expect the tough cases to define more exact points, and I’d expect most of those to lose. Which of them are required to create something endorsing what they oppose? I’d be interested in seeing how far that could go, but in any case I’d consider the baker’s action protected by the first amendment.

            3. What’s the argument that the florist isn’t creating a work of art? There’s no utilitarian purpose to a floral arrangement, it’s primarily decorative, it’s designed to be appreciated for its beauty (and sometimes, say something about the bride), it’s created by manipulating colors, shapes, and textures. Sounds like art to me.

              1. Good point. Eugene did not include florists in his list of occupations that would improperly have First Amendment exemptions to anti-discrimination laws even though florists have not been traditionally protected by the First Amendment. Perhaps he agrees with you that florists nonetheless create inherently expressive products.

                I would also add I shouldn’t have included greeting card providers because they have been traditionally protected by the First Amendment. On the other hand, I could add a couple examples that Eugene had: the landscaper and the wedding planner.

                At oral arguments in Masterpiece, the Solicitor General and Justice Gorsuch discussed cases that have a mix of artistic and utilitarian purposes, and seemed to agree that when the artistic component predominates, the First Amendment kicks in. It appears the Eugene would not agree.

                1. “even though florists have not been traditionally protected by the First Amendment.”

                  Is it that florists have not been traditionally protected by the First Amendment, or just that traditionally florists have not had to rely on the First Amendment for protection? Trying to force florists to do things they don’t want to seems to be a relatively new phenomena.

                  1. Whether florists have been traditionally protected is an objective fact. Your argument that they would have been had they only been forced by law to bring a case is well taken, and that’s why Eugene argues that in addition to the objective criterion is the subjective criterion that flower arrangements are inherently expressive.

                    1. “Whether florists have been traditionally protected is an objective fact. Your argument that they would have been had they only been forced by law to bring a case is well taken”

                      I’m not actually arguing that, because I don’t know that answer. I’m just saying that the question is harder than it may appear from an examination of case law. And I think that goes for things like baking as well–you have to look for evidence that something was excluded from First Amendment protection, not just whether it was included. The mere fact that there are no cases extending the First Amendment to bakers or florists is really weak evidence that it doesn’t apply to them because there’s little reason to expect such cases from having arisen in the past.

                    2. I think Eugene is arguing that services historically provided First Amendment protection were given that protection because they are inherently expressive. So, you apply the same standard to those services which have yet to be judged.

              2. My apology on this. My eye skipped past Josh’s mention of florists. Yes a florist could opt out — IF. Again the issue isn’t the exact product. It is having to craft a statement (including a non-verbal statement) explicitly against one’s beliefs.

    2. The Supreme Court has generally taken a narrow view of the 13th Amendment and has held that a variety of conduct does not rise to its level. Lower courts have universally held that discrimination laws requiring people to perform personal services do not constitute slavery within the meaning of the 13th Amendment. A similar, more recent round of cases arguing public school students couldn’t be required to perform community service also all failed. For this reason, a 13th Amendment challenge would seem rather unlikely to succeed. The petitioners here have arguments, including free speech and religion claims, which they argue distinguish their case from the cases and arguments which have failed in the courts.

      1. There is one exception, “badges and incidents” of slavery, which has been found to be broader. But this concept has been found to apply largely to various kinds of discrimination against African Americans. The seminal case involved the Fair Housing Act. Attempts to apply the “badges and incidents” framework to things like compelled student community service have failed.

      2. Yes, I’m aware of this. What I’m saying is that the judiciary has gradually slipped into permitting violations of the 13th amendment, because they were in a good cause, pursued by the right people. And they’ve gone far enough down this road that they are beginning to recognize there’s some kind of evil here they’re permitting, but they can’t bring themselves to recognize that the evil actually IS involuntary servitude.

        So they’re trying to shoehorn it into free expression, instead. But it’s a terrible fit for the 1st amendment, because it’s actually the 13th amendment being violated.

  30. Prof Volokh, have you ever tried decorating a cookie or cake? From scratch. See if there isnt artistic expression in them. A simple cake is still something which requires skill to do.

    Lets put it differently. If a photographer can say no even if all that was wanted was a single photo just like a shot seen in their portfolio of a bride and groom at the alter, then so goes a simple cake. The baker is creating or recreating an artistic work.

    Yes for both or no for both, your split down the middle doesnt make sense.

  31. Prof. Volokh acknowledges that a Jackson Pollock painting is protected expression under the First Amendment but argues that cakes are not, as follows:

    Jackson Pollock paintings are protected because they are special cases of a broad medium?painting?that has long been used to communicate expression. ?To say that baked goods, including very beautiful ones or ones intended for special occasions, are protected forms of “art” would trivialize the First Amendment. It cannot be that “an apparently limitless variety of [baked goods] can be labeled ‘speech'” because they are artistically creative. O’Brien, 391 U.S. at 376; see also First Am. Lawyers Ass’n Br. at 16. Unless the profession or conduct under consideration is described with more specificity, effectively any form of human activity could be recast as a form of First Amendment protected expression.

    But why wouldn’t it be appropriate to say that Jackson Pollock paintings in their bizarre abstractness are so different from what the “average” person would call art, and what had been called art from the beginning of time, that they don’t qualify? I don’t see the principle that distinguishes the Jackson Pollock from the unique pastry creation. Perhaps it is true that not every kind of conduct can be labeled “speech,” but there is something unsatisfying about the “I know it when I see it” approach.

    1. I’ve also expressed my discomfort with the incoherence of these distinctions. I’m fairly confident that the answer is, “you’ve got to draw the line somewhere.”

      Art is recognized as protected speech; pastries are not. On its face I don’t think that’s terribly controversial: a painting of a chocolate chip cookie versus a chocolate chip cookie.

      Then there is abstract art and splatters that don’t seem to be saying anything, at least to the average observer.

      Where do we draw the line to say what art is and isn’t expressive? That’s potentially a huge 1st Amendment conundrum. Is the chocolate chip cookie painting saying something protected by the First Amendment? And so the Court avoids all that and holds that art is protected by the 1st Amendment. But then we may say why not the artistic cake which is a symbol as well as an edible? But then, why not an ornate cookie? Who are we to say whether the cookie speaks less than the cake? A corollary to the “draw the line somewhere” idea is that we’ve potentially already drawn the line to encompass much that doesn’t properly fall under the ambit of the 1st Amendment. We just don’t want to go down the slippery slop of case-by-case determinations.

      1. What I wrestle with is what other food or drink preparation would rightly be defined as “art” and qualify for 1A protection? This isn’t to say that there is no artistry involved in food presentation….it’s just that no one puts out food solely for its aesthetic effect…..otherwise the wedding cake would not be cut up, distributed, and eaten. Obviously the Masterpiece baker viewed the wedding cake as being different from other cakes or desserts that he might prepare. Is one art and the others not? Can a cake endorse a wedding? Is it possible to have a gay cake? Is there projection going on here?

        Poetry, stories, or dance recitals don’t have some utilitarian purpose….painting and sculptures are primarily decorative and are designed to evoke something….t-shirts become expressive when there is some thought being conveyed….standard wedding cakes…..I don’t get….that would seem to open the door to a lot of stuff

        1. “it’s just that no one puts out food solely for its aesthetic effect”

          Except wedding cakes are produced in large part for their aesthetic effect.

          1. Otherwise, using basic sheet cakes would be far more effective.
          2. There is a reason why wedding photographers go out of their way to photograph the cake before it’s cut and served for inclusion in the wedding album. This is not done with other wedding food items.
          3. Perishable / edible can not be the sole basis for exclusion from being considered art. If perishable makes it not art, what about sand castles and ice sculptures?

          1. correction:
            1 Otherwise, using basic sheet cakes would be the preferred option as they are more cost effective.

      2. CrispyBacon “Art is recognized as protected speech; pastries are not. On its face I don’t think that’s terribly controversial: a painting of a chocolate chip cookie versus a chocolate chip cookie”

        I’m wondering if that recognition — or lack thereof — is at all tied to American mass-production of foodstuffs? Chocolate chip cookies are factory-produced. Or one goes into Kroger for the donuts they’ve bought through a supplier. So pastries are “only” food.

        But this view slides so easily into things that are crafted, though not “high art.” So it’s okay for David’s doodle to show in a sculpture but not in a porn pamphlet. It was even okay for Disney’s “Fantasia” to be chockablock with bare breasts among the ghosts in the “Night on Bald Mountain” episode, but try putting that in a 1930s comic book.

        In the case of food, it’s “only” food. What about when the food makes a statement about the cook’s political, religious, philosophical, or moral vision? O think that should be an important issue, more so than what the mundane item is.

        1. I don’t think mass production makes a difference. I think it is very safe to assert that a 18th century inn that served food, even wedding fare, wasn’t seen as engaged 1st Amendment protected speech activity.

          This does not mean that there is not a political, religious, philosophical, or moral vision connected to food – even if mass produced. We know this is the case w/r/t vegan, kosher, and halal foods, as examples. That doesn’t mean the food itself is making a statement and that is the dividing line Volokh is identifying.

          Under a general law regulating nutrition at restaurants, could an ethical vegan/Jewish/Muslim restaurant be compelled to produce foods violative of their religious/ethical beliefs? As with a wedding cake, many of us would say that should not be permissible. But the offense is caused by compulsion to act contrary to belief in these cases. Matzoh crackers have a certain significance, but it is remarkable to say they are expressive. Surely, they are symbolic but that alone is not synonymous with expressive.

          To put a fine point on it: one understands a person burning a flag is making a statement that does not reflect on the store that sold the flag. It’s no less offensive to a patriotic store owner but we recognize that his own *expression* is not implicated. If a store owner sells the flag knowing it will be used offensively, that may reflect poorly on him, but for imputed beliefs rather than his own expression.

          1. CrispyBacon: “To put a fine point on it: one understands a person burning a flag is making a statement that does not reflect on the store that sold the flag. It’s no less offensive to a patriotic store owner but we recognize that his own *expression* is not implicated”

            I agree, but I don’t think it is completely relevant. (1) A store has flags and you buy them. They are off-the-shelf items. The owner is not required to design or create a flag for you. (2) While I think something “reflecting” on a store, socially, is relevant, from my perspective the most important element is the requirement to actually do the creation, whatever the wider community will think of it.

            1. But what if the store makes the flags and does so to express patriotism as well as to make money? The store regularly makes/sells flags to veterans’ events and parades. The store makes some rather creative US flag designs in addition to the traditional design. In any event, they apply a certain stitch and fabric choices when making a traditional style flag.

              Then a communist organization orders 100 flags for their activities, which involve trampling and burning them. There are currently only 37 flags in stock, so 63 must be made. The store owner instantly declines to make the 63 flags.

              I think this is still a challenging hypothetical because flags are typically recognized as expressive in a way that cakes are not. But perhaps the flag maker could, under Volokh’s analysis, refuse to provide flags….for a patriotic gay wedding?

              1. CrispyBacon: “But what if the store makes the flags and does so to express patriotism as well as to make money? The store regularly makes/sells flags to veterans’ events and parades.”

                An interesting hypothetical which would be — for me — a three-pipe problem. My initial thought would be that if the owner knew the flags were being bought to “desecrate” them (as he would consider it), he would have a free-speech right not to create and sell them — or to sell them at all if they were his own creation rather than items purchased from that factory in China that’s taking all his business.

                For the patriotic gay wedding, I’d say — you have a gift for hypotheticals. Yes the flags are expressive. But they do not specifically endorse the wedding (which they would if, say, a rainbow motif were woven through them). So, a three-pipe problem.

                1. Thanks for the responses. I think there’s a conundrum here of injecting a somewhat subjective standard of what counts as speech. Personally providing one’s art for a wedding would seem just as offensive whether that art is a flag, a ketubah, a cake, or the flowers. Some of these things are more closely and usually associated with a wedding, but I don’t know that can make a principled difference. It seems that the “speech” at issue is defined by the connectedness to its use, rather than the speech on its own.

                  Following the reasoning you apply to the flag suggests a baker could be made to create a generic cake for a gay wedding, and that the plaintiffs are at least right that the baker failed to find out what they wanted before rejecting their request. I do see the point about a wedding cake being special but I don’t see the principled rationale for holding it to be speech.

  32. Suppose the law said that there was an infraction only when a comparable service was not readily available, and only when it is a refusal to serve a particular customer because of his identity (e.g. refusal to serve an LGBT person rather than a refusal to participate in a gay wedding).

    We would be left with the affront to the personal dignity of the LGBT person who wishes gay weddings to be affirmed vs. the affront to the personal dignity of the person who is being told that he must associate himself with an activity he regards a sinful. My impression is that those siding with the LGBT person are doing so because they regard the religious person’s beliefs to be glorified but illegitimate bigotry. They know that the person is acting in accordance with religious beliefs that have been accepted for millennia, but they want those religious beliefs to be stamped out.

    1. Of course. The left wants all traditional Western values destroyed.

  33. While creating photographs, videos, and text would be constitutionally protected speech (so we support the right of, for instance, photographers not to photograph same-sex weddings), creating wedding cakes with no text or symbolic design on them is not.

    I respectfully disagree. My wife is well-known in our area for her wedding cakes. She only makes them for family and friends. It is her gift to the couple and saves them a $1,000 or more. The process she goes through in designing the cake involves multiple interviews with the bride and groom (often there is a groom’s cake, too) to get to know them and their interests, passions, and aspirations. Then, she sketches a few designs that capture her vision of the couple’s future marriage. (One couple loved riding motorcycles, so she subtly included motorcycle wheels throughout the cake as part of the theme. If you didn’t look close, you wouldn’t notice what they were. The gasp of surprise from the bride when she realized what they were on the day of the wedding was priceless.) Each cake is a unique design created just for that couple in celebration of their union. Each cake is an edible sculpture. Is Volokh saying sculpture only has 1st amendment protection if it has writing on it? Or is he saying it only has protection if its made from stone?

    1. Allow me to add: In our area, there are often several weddings on the same date. You can not attend every reception. We’ve been told that the chance to see one of my wife’s cakes has been the deciding factor. So, her cakes are clearly seen in our community as her endorsement of the wedding.

  34. Coming from the firm representing the baker, I can say that an appeal is not as likely as a dismissal. The judge ruled that the State’s argument lacks merit as a matter of law. If the State chooses to proceed, then it could whiff of “malicious prosecution” and/or spark an anti-SLAPP action.

    As for the actual argument, the ultimate issue is case-by-case and fact-dependent. Cathy’s custom cake designing is a series of multiple steps that involves close collaboration with the couple. The painter must choose the paint, mix the paint, set the canvas, and put on the beret. This is all part of the artistic process.

    1. I still can’t get past why the couple would “want” a baker who thinks the couple’s marriage is a sin to bake the cake. Because I cannot imagine they would still want that, the whole lawsuit looks merely like punishment because of someone’s religious beliefs.

      But I don’t think an appeal would be frivolous, given the broad disagreement regarding whether baking a wedding cake is in fact expressive. Nevertheless, nice work

      1. We have reason to believe that it was a setup. The couple had been prowling around other venues with tape recorders trying to entrap other small business owners.

        1. That evil homosexual agenda at work again! If Justice Scalia were alive today, he wouldn’t put up with this sort of nonense!

  35. I’m less interested in the 1st Amendment argument than I am the 13th Amendment one. Forcing a person to serve someone he doesn’t want to is involuntary servitude. Period. I can see circumstances where so requiring would satisfy strict scrutiny (for example, a military draft or the government commandeering surgeons during a terrorist attack), but cake baking does not qualify.

  36. Professor Volokh, I do not follow you. Can two members of my local “Pork Lovers’ Club” demand that a Jewish or Muslim baker bake a cake for them complete with an image of a hog on top of the cake? I believe that in a clash between intrusive public accommodation laws and freedom of expression, we need to give the benefit of the doubt to freedom fo expression.

    1. 1. Why would a Jewish or Muslim baker care if there was a pig decoration on the cake? I don’t think pictures of pigs are unclean in either tradition.

      2. This case is about a cake without any explicit symbols. Once you include words or images the analysis changes (though the result might not).

      1. 2. This case is about a cake without any explicit symbols. Once you include words or images the analysis changes (though the result might not).

        I just don’t get how anyone can make this argument in good faith. It would dismiss from 1st amendment protection a lot of expressive conduct. Modern dance contains little in the way of explicit symbols and seldom contains any words, therefore it can be censored? Instrumental music contains no words, so there’s no 1st amendment protection, right? Abstract art often contains few if any explicit symbols, so, again, we should be free to ban it. My point is that the distinction cannot rest on whether or not the cake has words or symbols on its surface. There are too many other types of expression that are protected for this distinction to have any value.

        The issue is one of a fundamental misunderstanding of the expressive nature of creating the cake. If Volokh, and the courts, thought of the cakes as unique sculptures celebrating the union of two individuals, I don’t think we’d be having this conversation. If a T-shirt printer can refuse to print-up shirts using a design created by someone else, merely because he disagrees with the message, how can we square that result with requiring someone to design and create a cake to convey a message she disagrees with?

        1. Dancing contains symbols, though.

  37. My greatest fear is that someone will spit in the cake.

  38. A question to Professor Volokh: Are you addressing the religion clause argument? Is it your position that the state could, through a generally applicable law, prohibit kosher food Imagine a legislature finds that specialized, expensive grocery stores and restaurants have made it impossible for poor people to obtain food and, after making suitable secular findings including a survey of what poor people typically buy, has required all food establishments to sell certain minimal items, including canned pork or similar very cheap meat. Or imagine an animal welfare law prohibiting kosher slaughter. Could there be a viable Religion Clause challenge against such a law? If there could be, is this case distinguishable? I suspect nobody would consider canned pork speech.

  39. No court evaluates Free Speech rights against the interest of the State in enforcing public access laws in vacuum

    This phrase alone should send a cold shiver down anybody’s spine.

  40. While creating photographs, videos, and text would be constitutionally protected speech (so we support the right of, for instance, photographers not to photograph same-sex weddings), creating wedding cakes with no text or symbolic design on them is not.

    The First Amendment doesn’t grant a right to free speech, it merely restates a right that people already have. The reason the First Amendment doesn’t explicitly enumerate a right to refuse to bake cakes is that a need for stating such a right would have been considered ludicrous.

  41. By the way, I take it that it’s clear that the Free Speech Clause issue can’t turn on whether Miller’s belief “is part of the orthodox doctrines” of many religions, or whether it’s instead “trivial, arbitrary, nonsensical, or outrageous” — the Free Speech Clause protects views regardless of whether they express views that are seen as orthodox, outrageous, or nonsensical.

    Quite clear. However, the Establishment Clause can turn on that question, since it only protects “religion”.

    But that’s the wrong question to begin with. The question shouldn’t be “do amendments protect this right”, but “does the government have an enumerated power that allows it to interfere”. And even without the First Amendment, regulating the baking and sale of cakes within a state is clearly not one of the enumerated powers of the federal government. But if courts ever start to admitting that, much of 20th century federal law comes crashing down.

    1. All of these gay wedding cases have involved the service providers being sued for violating state laws, not federal ones. This is California enforcing a California law. The federal government has no involvement.

      1. It does if the state law either facially or in application violates the Constitution.

  42. Rather than trying to analyze in a vacuum whether something constitutes expression, it might make sense to look at the governmental purpose. If the purpose and effect is to prevent “dignitary harm” only, then doesn’t that indicate that it really is about expression?

    1. It would seem your standard would apply to the limo driver as well (it would harm the dignity of the couple to not provide the limo because they are gay). Do you believe the limo driver is speaking when he refuses to provide service?

      1. In this example, the assumption is that the “dignity” of the customer — and nothing else — is at issue.

        I think dignity might be an important limiter — the cake baker is not keeping the gay couple from marrying, having a wedding ceremony, or even actually getting a wedding cake. He is inconveniencing them, or mortifying them, or annoying them. Free speech is so precious to me that it outweighs annoyance, etc.

        If something more tangible is at stake (housing, property, food, medicine, employment, transportation), the calculus of rights shifts. I don’t think the limo driver could or should prevail on a free speech basis (I’m open to counter-arguments). If the couple insisted that the driver (say) fly a rainbow flag, it would probably push matters in the other direction. “I’ll drive you but I won’t fly your flag” is similar enough to “I’ll sell you an off-the-shelf cake but I won’t make one for you.”

  43. It should be noted that these kind of cases will often depend on specific factual findings. See this passage.

    The State does ask the court to limit Miller’s design, because the State acknowledges that she cannot
    create any element of the design that would disparage same-sex marriage
    , because that design element
    would be unacceptable to Rodriguez-Del Rios.

    This was not conceded in the Masterpiece Cakeshop case.

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