The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today's Klein v. Oregon Bureau of Labor & Industries upholds a $135,000 damages award imposed on Melissa & Aaron Klein (owners of Sweetcakes by Melissa) for refusing to make a wedding cake for a same-sex ceremony. The court acknowledged that people who create or perform First-Amendment-protected expression (such as singers, composers, painters, or sculptors, and I would add photographers to that list) might have a First Amendment not to create such expression that they find objectionable, even when they hire themselves to the public:
[T]he services of a singer, composer, or painter … [might] fit the definition of a "place of public accommodation" under ORS 659A.400. One can imagine, for example, a person whose business is writing commissioned music or poetry for weddings, or producing a sculpture or portrait of the couple kissing at an altar. One can also imagine such a person who advertises and is willing to sell those services to the general public, but who holds strong religious convictions against same-sex marriage and would feel her "freedom of mind" violated if she were compelled to produce her art for such an occasion. For the Kleins, this is that case. BOLI disagrees that a wedding cake is factually like those other examples, but the legal point that those examples illustrate is that existing public accommodations case law is awkwardly applied to a person whose "business" is artistic expression. The [Supreme] Court has not told us how to apply a requirement of nondiscrimination to an artist.
We believe, moreover, that it is plausible that the United States Supreme Court would hold the First Amendment to be implicated by applying a public accommodations law to require the creation of pure speech or art. If BOLI's order can be understood to compel the Kleins to create pure "expression" that they would not otherwise create, it is possible that the Court would regard BOLI's order as a regulation of content, thus subject to strict scrutiny, the test for regulating fully protected expression. See Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (1995) (application of public accommodations statute violated the First Amendment where it "had the effect of declaring the sponsors' speech itself to be the public accommodation," thus infringing on parade organizers' "autonomy to choose the content of [their] own message"); see also Riley v. National Federation of the Blind (1988) (explaining that "[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech," and subjecting such regulation to "exacting First Amendment scrutiny")….
But the court concluded that even customized wedding cakes aren't inherently covered by the First Amendment speech compulsion doctrine:
[T]he question is whether that customary practice, and its end product, are in the nature of "art." As noted above, if the ultimate effect of BOLI's order is to compel the Kleins to create something akin to pure speech, then BOLI's order may be subject to strict scrutiny. If, on the other hand, the Kleins' cake-making retail business involves, at most, both expressive and non-expressive components, and if Oregon's interest in enforcing ORS 659A.403 is unrelated to the content of the expressive components of a wedding cake, then BOLI's order need only survive intermediate scrutiny to comport with the First Amendment. See United States v. O'Brien (1968) ("[W]hen 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms.").
[T]he Kleins' argument that their products entail artistic expression is entitled to be taken seriously. That being said, we are not persuaded that the Kleins' wedding cakes are entitled to the same level of constitutional protection as pure speech or traditional forms of artistic expression. In order to establish that their wedding cakes are fundamentally pieces of art, it is not enough that the Kleins believe them to be pieces of art. See Nevada Comm'n on Ethics v. Carrigan (2011) ("[T]he fact that a nonsymbolic act is the product of deeply held personal belief—even if the actor would like to convey his deeply held personal belief—does not transform action into First Amendment speech."). For First Amendment purposes, the expressive character of a thing must turn not only on how it is subjectively perceived by its maker, but also on how it will be perceived and experienced by others. Here, although we accept that the Kleins imbue each wedding cake with their own aesthetic choices, they have made no showing that other people will necessarily experience any wedding cake that the Kleins create predominantly as "expression" rather than as food.
Although the Kleins' wedding cakes involve aesthetic judgments and have decorative elements, the Kleins have not demonstrated that their cakes are inherently "art," like sculptures, paintings, musical compositions, and other works that are both intended to be and are experienced predominantly as expression. Rather, their cakes, even when custom-designed for a ceremonial occasion, are still cakes made to be eaten. Although the Kleins themselves may place more importance on the communicative aspect of one of their cakes, there is no information in this record that would permit an inference that the same is true in all cases for the Kleins' customers and the people who attend the weddings for which the cakes are created. Moreover, to the extent that the cakes are expressive, they do not reflect only the Kleins' expression. Rather, they are products of a collaborative process in which Melissa's artistic execution is subservient to a customer's wishes and preferences. For those reasons, we do not agree that the Kleins' cakes can be understood to fundamentally and inherently embody the Kleins' expression, for purposes of the First Amendment.
We also reject the Kleins' argument that, under the facts of this case, BOLI's order compels them to "host or accommodate another speaker's message" in a manner that the Supreme Court has deemed to be a violation of the First Amendment. In the only such case that involved the enforcement of a content-neutral public accommodations law, Hurley, the problem was that the speaker's autonomy was affected by the forced intermingling of messages, with consequences for how others would perceive the content of the expression. Hurley (reasoning that parades, unlike cable operators, are not "understood to be so neutrally presented or selectively viewed," and "the parade's overall message is distilled from the individual presentations along the way, and each unit's expression is perceived by spectators as part of the whole"). Here, because the Kleins refused to provide their wedding-cake service to Rachel and Laurel altogether, this is not a situation where the Kleins were asked to articulate, host, or accommodate a specific message that they found offensive. It would be a different case if BOLI's order had awarded damages against the Kleins for refusing to decorate a cake with a specific message requested by a customer ("God Bless This Marriage," for example) that they found offensive or contrary to their beliefs….
In short, we disagree that the Kleins' wedding cakes are invariably in the nature of fully protected speech or artistic expression, and we further disagree that BOLI's order forces the Kleins to host, accommodate, or associate with anyone else's particular message. Thus, because we conclude that BOLI's order does not have the effect of compelling fully protected expression, it does not trigger strict scrutiny under the First Amendment.
The court concluded that the order was therefore only subject to (at most) intermediate scrutiny under the First Amendment—a relatively government-friendly test—and it passed such scrutiny because of the government interest in "prevent[ing] the dignitary harms that result from the unequal treatment of same-sex couples who choose to exercise their fundamental right to marry." But the court again noted that the analysis might be different for professionals who are asked to create First-Amendment-protected expression:
Again, it is significant that BOLI's order does not compel the Kleins to express an articulable message with which they disagree; rather, their objection is to being compelled to engage in any conduct that they regard as expressive.
And earlier, it noted that this may extend even to bakers, if they were baking something that would be understood as art by viewers:
To be clear, we do not foreclose the possibility that, on a different factual record, a baker (or chef) could make a showing that a particular cake (or other food) would be objectively experienced predominantly as art—especially when created at the baker's or chef's own initiative and for her own purposes. But, as we have already explained, the Kleins never reached the point of discussing what a particular cake for Rachel and Laurel would look like; they refused to make any wedding cake for the couple. Therefore, in order to prevail, the Kleins … must demonstrate that any cake that they make through their customary practice constitutes their own speech or art. They have not done so.
That would extend, I think, to the bakers' refusing to write particular text on the cake, as one of the earlier quotes notes ("because the Kleins refused to provide their wedding-cake service to Rachel and Laurel altogether, this is not a situation where the Kleins were asked to articulate, host, or accommodate a specific message that they found offensive").
I think this analysis is generally right, though I might quibble with a few details in the long opinion (available in full here). Whatever you think about such applications of antidiscrimination law (or about the particular damages award in this case) as a matter of policy, or of broader conceptions of liberty, the First Amendment bars compulsion of speech, not of all conduct. And while "speech" for First Amendment purposes has long included symbolic as well as verbal expression, it doesn't include all human behavior, even human behavior that can be seen as "artistic"—for more on that, see Dale Carpenter's and my Masterpiece Cakeshop amicus brief.
The court also rejected the Kleins' religious exemption claim, holding that under Employment Division v. Smith (1990) the Free Exercise Clause doesn't require such exemptions from generally applicable laws. (The Oregon Constitution's religious freedom provision has been interpreted the same way, and Oregon doesn't have a Religious Freedom Restoration Act.) It did hold for the Kleins on a somewhat different (but related) matter, which I discuss in a separate post.