The Volokh Conspiracy
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As readers of the blog know, Dale Carpenter and I filed an amicus brief opposing the cakemaker's First Amendment claim in Masterpiece Cakeshop (though we would support similar claims by photographers or freelance writers). But I'm delighted to be able to pass along a contrary view from Stanford Prof. Michael McConnell, one of the leading First Amendment scholars in the country; you can read the PDF version, complete with footnotes, here, but I quote the text below (with some paragraph breaks added):
Dressmakers, Bakers, and the Equality of Rights
Around the time briefs were being written in the Masterpiece Cakeshop case and Washingtonians were preparing for the 2016 inauguration festivities, the Washington Post ran a story in its Arts & Entertainment section entitled "Should designers dress Melania and Ivanka? The question is more complex than it seems." According to the article, President-elect Trump had run a campaign that inspired "waves of racism and violence" and "[w]hether to associate with him ha[d] become a moral question." One designer, Sophie Theallet, public declared she would not design a dress for the first lady, explaining that "as an independent fashion brand, we consider our voice an expression of our artistic and philosophical ideas." The article stated that a designer like Theallet sees fashion as a way of expressing her views about beauty and the way women are perceived in society. Fashion is her tool for communicating her world vision. In the same way that a poet's words or a musician's lyrics are a deeply personal reflection of the person who wrote them, a fashion designer's work can be equally as intimate.
The article went on to explain the difference between selling "wares" off the rack "at retail" and "making one-of-a kind garments for individuals." According to the article, that difference explains "why declining to dress a celebrity is not the equivalent of refusing service."
Toward the end of the article, the writer expresses her own view. Noting that other designers "would happily, and without reservation, create a splendid wardrobe for the incoming first lady," the writer concludes: "for those designers for whom fashion serves as their voice in the world, they should not feel obligated to say something in which they do not believe."
There do not seem to have been any angry letters to the editor. No one insisted that a dressmaker who enters commerce has an obligation to serve all comers and forfeits any right to withhold services on moral or ideological grounds. No one wrote that designing a dress is not a form of expression. Presumably, while some Americans might agree with Sophie Theallat's decision not to lend her skills to the Trump inauguration and others might disagree, no one would question the expressive nature of the activity or disagree with the Washington Post writer's conclusion that "those designers whose work serves as their voice in the world should not feel obligated to say something in which they do not believe."
In fact, it is a common feature of American life for people to refuse to do business with those with whom they have moral or ideological disagreements. Several Rockettes refused to dance at the Trump inaugural. Pro-life women can refuse to be treated by doctors who perform abortions. PayPal refused to build a production facility in a state that enacted a law it disapproved of about transgender bathrooms.
Political consultants (some of them) work only for politicians they favor. Actors can decline roles in productions that communicate a racist message—even if their own roles have no such message. Sports leagues have refused to compete in a state that passed a Religious Freedom Restoration Act. I know a public relations agency that would not do work for the local Catholic diocese because of the Catholic positions on same-sex marriage and abortion. And the United States Supreme Court has already—unanimously—held that an economic boycott based on race, namely a boycott of white-owned businesses, is a constitutionally protected form of protest. The dressmakers profiled in the Washington Post are just the latest example.
How does this compare to Masterpiece Cakeshop?
This brings us back to Masterpiece Cakeshop. The legal issue in that hotly-contested case is whether a Colorado baker named Jack Phillips can be punished for refusing to create a custom cake for an event of which he morally disapproves. In all but one respect, his circumstances are identical to those of Sophie Theallet, the dress designer. Like Theallet, Phillips regards his creative work as his "voice in the world" and as reflecting his view of beauty and of marriage. Like Theallet, Phillips has moral qualms about the event and does not wish to "associate" with it.
Like an inaugural gown, a wedding cake is an expression of its designer's "values" and "point of view"—even if the dress contains no words and no symbols specifically referring to Trump. It is the event at which the dress (or cake) would be used that supplies the expressive context—not necessarily anything particular to the dress (or cake). Like dress designers, Phillips distinguishes between selling off-the-shelf items to a customer on a retail basis and "making one-of-a-kind garments [or cakes] for individuals."
And just as there are many designers "who would happily, and without reservation, create a splendid wardrobe for the first lady," the record in the Colorado case shows that there were dozens of bakers in close proximity to Masterpiece Cakeshop who would happily create a cake for their occasion. This means there is no practical burden on Melania or on the couple from the denial of service—only the insult that comes from knowing that another human being disapproves, which is precisely what the dressmaker and the baker wish to communicate, and the government has no right to prevent.
As the dressmaker news story illustrates, there is no genuine doubt that artisans express themselves in their creations and in their decisions not to associate with events that are inconsistent with their beliefs and values. If Masterpiece Cakeshop had arisen in any other cultural context, civil libertarians would easily recognize the expressive character of the decision to create (or refuse to create) dresses and cakes for ceremonial events. The only difference between the baker and the dress designer is that the dress designer disapproves of the Trump inauguration while the baker disapproves of same-sex weddings. Unfortunately, for some people, that makes all the difference.
Once we recognize that the creation of symbolic objects like inaugural gowns and wedding cakes can be expressive, it ceases to be surprising that the First Amendment extends its protection—even to what one Justice during oral argument derisively dismissed as mere "food." The Supreme Court has long recognized that nonverbal conduct, such as the burning of a draft card to protest the war, sleeping in a park to protest treatment of the homeless, or wearing an army uniform in an anti-war film is entitled to a measure of constitutional protection. To be sure, the government can regulate the material impacts even of expressive conduct, but it cannot use its power to regulate conduct as a back-door way of punishing its communicative content. And it cannot force people engaged in an expressive activity to create or convey messages they disagree with.
It has been argued, nonetheless, that the Masterpiece Cakeshop case is not really about freedom of expression. The Colorado law, according to an amicus brief written by a distinguished lawyer and academic, "does not regulate the creation of messages," but only the selection of customers. The challengers to the Colorado law "have a First Amendment right to pick their message, but not to choose their customers based on sexual orientation."
That is a plain misstatement of the facts. The record shows that the Colorado baker, Jack Phillips, happily produces goods for customers without regard to their sexual orientation. He does not discriminate among types of customer; instead, he (like the dressmaker) refuses to create cakes that celebrate ideas of which he disapproves.
He is the mirror image of a gay photographer who refuses to provide his services to an evangelical rally against same-sex marriage. The photographer is not discriminating on the basis of religion; he is not anti-evangelical; he is opposed to the message of the rally. By the same token, Jack Phillips does not discriminate against customers on the basis of their sexual orientation. He refuses to bake cakes that celebrate a same-sex wedding, which he regards as contrary to God's will.
The State of Colorado is regulating the services of bakers on the basis of their ideological viewpoint. Three pro-same-sex-marriage bakers were approached and asked to bake cakes to be served at anti-same-sex events, and all three refused. When the disappointed customers complained to the Colorado authorities, invoking the theory that businesses have an obligation to serve all comers, the state responded that these bakers were not discriminating against particular customers but simply refusing to assist events they found "offensive." Exactly the same is true of Jack Phillips. The inconsistent treatment of the cases makes clear that the state is simply playing favorites: punishing speech with which it disagrees, protecting speech with which it agrees. That violates fundamental principles of the First Amendment.
Lessons from the Not-So-Distant Past
The closest analogy in the Supreme Court's cases is the unanimous decision in Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston. In that case, a veterans group organized a parade on St. Patrick's Day, allowing a wide and seemingly miscellaneous collection of groups to march. The case arose because the organizer refused to allow a group to march carrying a banner announcing themselves as the "Irish American Gay, Lesbian, and Bisexual Group of Boston."The parade organizers did not discriminate against gay or lesbian parade marchers as such—indeed they made no inquiry into the sexual orientation of anyone marching in the parade—but they objected to the message conveyed by the banner, and refused to include it as part of their parade.
Because the parade organizers allowed a wide variety of groups to march, the Massachusetts courts defined the parade as a "public accommodation," much as the Colorado courts have defined Masterpiece Cakeshop as a public accommodation—meaning that it was forbidden to discriminate on various identity grounds, including sexual orientation. The Massachusetts courts held that exclusion of the group violated the public accommodations law. Describing the parade as lacking the element of expression for purposes of the First Amendment, the Massachusetts court held that forcing the inclusion of the group carrying the banner would not violate the First Amendment. The court issued an order forcing the parade organizers to include the gay and lesbian group to march in the future.
The Supreme Court reversed. It began by noting that public accommodation laws are "well within the State's power" and "do not, as a general matter, violate the First or Fourteenth Amendment." A public accommodations law "does not, on its face, target speech or discriminate on the basis of its content, the focal point of the prohibition being rather on the act of discriminating against individuals in the provision of publicly available goods, privileges, and services on the proscribed grounds." Nonetheless, the Court held that "[i]n the case before us, … the Massachusetts law has been applied in a peculiar way" namely, that its enforcement action was not based on exclusion of any individuals on the basis of their sexual orientation, but instead on the decision of the organizers not to allow the group to march under its banner.
The state's order "essentially requir[ed] petitioners to alter the expressive content of their parade" by including a message they did not approve. "[O]nce the expressive character of both the parade and the marching GLIB [Irish-American Gay, Lesbian and Bisexual Group of Boston] contingent is understood," the Court explained, "it becomes apparent that the state court's application of the statute had the effect of declaring the sponsors' speech itself to be the public accommodation," in violation of "fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message." Nor does it matter that the dispute arose in the context of the commercial marketplace. The right to "autonomy to control one's own speech," the Court stated, is "enjoyed by business corporations generally and by ordinary people."
The same logic should apply in Masterpiece Cakeshop. As in Hurley, the state's public accommodation law on its face is unobjectionable, but as in Hurley, the "peculiar" application of the law tramples on First Amendment rights. When the baker refuses customers not on the basis of their own protected characteristics, but because he does not wish to embrace their message, the law ceases to be an antidiscrimination statute in the ordinary sense and becomes a regulation of speech. Even if Phillips's own "specific expressive purpose" were difficult to discern (and it is not), he has the same right that the parade organizers in Hurley had "not to propound a particular point of view."
Some may say that this prioritizes one right over another—the right of freedom of speech, or perhaps the freedom of religion — over the right not to suffer invidious discrimination. However, this is a misunderstanding. Instead, a decision in favor of the baker would put these rights on an equal plane. The rights of freedom of speech and religion do not entail the right to compel others to support, participate in, or endorse the exercise of the right. Dissenters from popular ideas have the right to express their views, but no right to complain if other people disapprove. It does not violate their dignity for other individuals to abhor their message, and they have no claim of "discrimination" if other individuals refuse to cooperate in or carry their messages.
No one doubts that an artist or artisan can refuse to assist a political party or ideological movement he or she opposes. No one doubts the right to refuse to perform in or assist in a worship service. We prohibit religious discrimination, but a Jewish printer does not have to print church programs declaring Jesus to be the messiah. We prohibit racial discrimination, but a singer cannot be compelled to perform the national anthem at an NAACP convention if she objects to that organization's policies.
There is no need to draw lines between architects, speech writers, public relations firms, photographers, musicians, bakers, or florists: no one engaged in an expressive activity can be compelled to use their talents in support of a cause they disapprove of. This has always been true in America. To say that same-sex weddings are on an equal plane is not to treat the right of same-sex marriage as second class in any way. It simply treats this new right with the same respect, and the same limits, that the older rights of speech and religion have long been treated.
The Washington Post was right. Dress designers have no obligation to create an inaugural gown for Ivanka or Melania Trump. "[A]s for those designers for whom fashion serves as their voice in the world, they should not feel obligated to say something in which they do not believe." The Trump inauguration stands for ideas that many Americans do not share, and an inaugural gown—even without specific words or markings—is part of the symbolism of that event. A wedding is no less symbolic. Nor is the cake. The fashioning of expressive symbols cannot be compelled.