The Volokh Conspiracy
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What Does the Masterpiece Cakeshop Decision Say About the Free Speech Claim?
Four Justices opined on this issue, with Justices Thomas and Gorsuch saying that requiring bakers to make cakes for same-sex weddings is an unconstitutional speech compulsion, and Justices Ginsburg and Sotomayor saying the opposite.
As I've mentioned, the main question raised in Masterpiece Cakeshop had to do with the Free Speech Clause, and the prohibition on "compelled speech": Would requiring a baker to make a wedding cake for a same-sex wedding (even one without specific wording or symbolism, such as a rainbow design) be compelling the baker to engage in speech, and thus violate the First Amendment? As the Court put it, "Phillips … argues that he had to use his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation," and "this contention has a significant First Amendment speech component."
The Court declined to opine on this question, focusing instead on the peculiar facts of this case, which it thought showed discrimination by Colorado officials against Masterpiece Cakeshop based on its religious beliefs. (Such evidence would likely not be available in most other same-sex wedding service provider cases, including ones involving photographers, calligraphers, florists, and the like.) But two Justices, Justices Thomas and Gorsuch, concluded that the baker should have won on the free speech theory:
Although public-accommodations laws generally regulate conduct, particular applications of them can burden protected speech. When a public-accommodations law "ha[s] the effect of declaring … speech itself to be the public accommodation," the First Amendment applies with full force. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., for example, a Massachusetts public-accommodations law … required the sponsor of a St. Patrick's Day parade to include a parade unit of gay, lesbian, and bisexual Irish-Americans[. T]he Court unanimously held that the law violated the sponsor's right to free speech. Parades are "a form of expression," this Court explained, and the application of the public-accommodations law "alter[ed] the expressive content" of the parade by forcing the sponsor to add a new unit. The addition of that unit compelled the organizer to "bear witness to the fact that some Irish are gay, lesbian, or bisexual"; "suggest … that people of their sexual orientation have as much claim to unqualified social acceptance as heterosexuals"; and imply that their participation "merits celebration." …
The parade in Hurley was an example of what this Court has termed "expressive conduct." This Court has long held that "the Constitution looks beyond written or spoken words as mediums of expression," and that "[s]ymbolism is a primitive but effective way of communicating ideas." Thus, a person's "conduct may be 'sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.'" Applying this principle, the Court has recognized a wide array of conduct that can qualify as expressive, including nude dancing, burning the American flag, flying an upside-down American flag with a taped-on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the American flag, and flying a plain red flag.
Of course, conduct does not qualify as protected speech simply because "the person engaging in [it] intends thereby to express an idea." To determine whether conduct is sufficiently expressive, the Court asks whether it was "intended to be communicative" and, "in context, would reasonably be understood by the viewer to be communicative." But a "'particularized message'" is not required, or else the freedom of speech "would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll."
Once a court concludes that conduct is expressive, the Constitution limits the government's authority to restrict or compel it. "[O]ne important manifestation of the principle of free speech is that one who chooses to speak may also decide 'what not to say'" and "tailor" the content of his message as he sees fit. This rule "applies not only to expressions of value, opinion, or endorsement, but equally to statements of fact the speaker would rather avoid." And it "makes no difference" whether the government is regulating the "creati[on], distributi[on], or consum[ption]" of the speech.
The conduct that the Colorado Court of Appeals ascribed to Phillips—creating and designing custom wedding cakes—is expressive. Phillips considers himself an artist. The logo for Masterpiece Cakeshop is an artist's paint palate with a paintbrush and baker's whisk. Behind the counter Phillips has a picture that depicts him as an artist painting on a canvas. Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding. Examples of his creations can be seen on Masterpiece's website.
Phillips is an active participant in the wedding celebration. He sits down with each couple for a consultation before he creates their custom wedding cake. He discusses their preferences, their personalities, and the details of their wedding to ensure that each cake reflects the couple who ordered it. In addition to creating and delivering the cake—a focal point of the wedding celebration—Phillips sometimes stays and interacts with the guests at the wedding. And the guests often recognize his creations and seek his bakery out afterward. Phillips also sees the inherent symbolism in wedding cakes. To him, a wedding cake inherently communicates that "a wedding has occurred, a marriage has begun, and the couple should be celebrated."
Wedding cakes do, in fact, communicate this message. A tradition from Victorian England that made its way to America after the Civil War, "[w]edding cakes are so packed with symbolism that it is hard to know where to begin." If an average person walked into a room and saw a white, multi-tiered cake, he would immediately know that he had stumbled upon a wedding. The cake is "so standardised and inevitable a part of getting married that few ever think to question it." Almost no wedding, no matter how spartan, is missing the cake. "A whole series of events expected in the context of a wedding would be impossible without it: an essential photograph, the cutting, the toast, and the distribution of both cake and favours at the wedding and afterwards." Although the cake is eventually eaten, that is not its primary purpose. The cake's purpose is to mark the beginning of a new marriage and to celebrate the couple.
[Footnote moved:] … [A] wedding cake needs no particular design or written words to communicate the basic message that a wedding is occurring, a marriage has begun, and the couple should be celebrated. Wedding cakes have long varied in color, decorations, and style, but those differences do not prevent people from recognizing wedding cakes as wedding cakes. And regardless, the Commission's order does not distinguish between plain wedding cakes and wedding cakes with particular designs or inscriptions; it requires Phillips to make any wedding cake for a same-sex wedding that he would make for an opposite-sex wedding.
Accordingly, Phillips' creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message—certainly more so than nude dancing, or flying a plain red flag. By forcing Phillips to create custom wedding cakes for same-sex weddings, Colorado's public-accommodations law "alter[s] the expressive content" of his message. The meaning of expressive conduct, this Court has explained, depends on "the context in which it occur[s]." Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are "weddings" and suggest that they should be celebrated—the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to "bear witness to [these] fact[s]." …
[Footnote moved:] [Justice Ginsburg's] dissent faults Phillips for not "submitting … evidence" that wedding cakes communicate a message. But this requirement finds no support in our precedents. This Court did not insist that the parties submit evidence detailing the expressive nature of parades, flags, or nude dancing. And we do not need extensive evidence here to conclude that Phillips' artistry is expressive, or that wedding cakes at least communicate the basic fact that "this is a wedding." Nor does it matter that the couple also communicates a message through the cake. More than one person can be engaged in protected speech at the same time. And by forcing him to provide the cake, Colorado is requiring Phillips to be "intimately connected" with the couple's speech, which is enough to implicate his First Amendment rights.
The Colorado Court of Appeals … [reasoned] that a reasonable observer would not view Phillips' conduct as "an endorsement of same-sex marriage," but rather as mere "compliance" with Colorado's public-accommodations law…. [But t]his argument would justify any law that compelled protected speech. And, this Court has never accepted it…. Hurley, for example, held that the application of Massachusetts' public-accommodations law "requir[ed] [the organizers] to alter the expressive content of their parade." It did not hold that reasonable observers would view the organizers as merely complying with Massachusetts' public-accommodations law….
In [three past] decisions, this Court rejected the argument that requiring the groups to provide a forum for third-party speech also required them to endorse that speech. But these decisions do not suggest that the government can force speakers to alter their own message.
The Colorado Court of Appeals also noted that Masterpiece is a "for-profit bakery" that "charges its customers." But this Court has repeatedly rejected the notion that a speaker's profit motive gives the government a freer hand in compelling speech. Further, even assuming that most for-profit companies prioritize maximizing profits over communicating a message, that is not true for Masterpiece Cakeshop. Phillips routinely sacrifices profits to ensure that Masterpiece operates in a way that represents his Christian faith. He is not open on Sundays, he pays his employees a higher-than-average wage, and he loans them money in times of need. Phillips also refuses to bake cakes containing alcohol, cakes with racist or homophobic messages, cakes criticizing God, and cakes celebrating Halloween—even though Halloween is one of the most lucrative seasons for bakeries. These efforts to exercise control over the messages that Masterpiece sends are still more evidence that Phillips' conduct is expressive….
The Colorado Court of Appeals also erred by suggesting that Phillips could simply post a disclaimer, disassociating Masterpiece from any support for same-sex marriage…. We have described similar arguments as "beg[ging] the core question." Because the government cannot compel speech, it also cannot "require speakers to affirm in one breath that which they deny in the next." States cannot put individuals to the choice of "be[ing] compelled to affirm someone else's belief" or "be[ing] forced to speak when [they] would prefer to remain silent." …
Because Phillips' conduct (as described by the Colorado Court of Appeals) was expressive, Colorado's public-accommodations law cannot penalize it unless the law withstands strict scrutiny. Although this Court sometimes reviews regulations of expressive conduct under the more lenient test articulated in O'Brien, that test does not apply unless the government would have punished the conduct regardless of its expressive component. Here, however, Colorado would not be punishing Phillips if he refused to create any custom wedding cakes; it is punishing him because he refuses to create custom wedding cakes that express approval of same-sex marriage. In cases like this one, our precedents demand "'the most exacting scrutiny.'"
The Court of Appeals did not address whether Colorado's law survives strict scrutiny, and I will not do so in the first instance. There is an obvious flaw, however, with one of the asserted justifications for Colorado's law. According to the individual respondents, Colorado can compel Phillips' speech to prevent him from "'denigrat[ing] the dignity'" of same-sex couples, "'assert[ing] [their] inferiority,'" and subjecting them to "'humiliation, frustration, and embarrassment.'"These justifications are completely foreign to our free-speech jurisprudence. States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified….
Justice Ginsburg, joined by Justice Sotomayor, concluded that applying the law to Masterpiece Cakeshop wouldn't violate its free speech rights (though the opinion didn't discuss what would happen to businesses that provide more expressive services, such as photography or calligraphy):
As Justice Thomas observes, the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection. Nor could it, consistent with our First Amendment precedents. Justice Thomas acknowledges that for conduct to constitute protected expression, the conduct must be reasonably understood by an observer to be communicative…. But Phillips submitted no evidence showing that an objective observer understands a wedding cake to convey a message, much less that the observer understands the message to be the baker's, rather than the marrying couple's. Indeed, some in the wedding industry could not explain what message, or whose, a wedding cake conveys. See Charsley, Interpretation and Custom: The Case of the Wedding Cake, 22 Man 93, 100-101 (1987) (no explanation of wedding cakes' symbolism was forthcoming "even amongst those who might be expected to be the experts"); id., at 104-105 (the cake cutting tradition might signify "the bride and groom … as appropriating the cake" from the bride's parents). And Phillips points to no case in which this Court has suggested the provision of a baked good might be expressive conduct.
For Dale Carpenter's and my view of the matter, which is closer to Justice Ginsburg's than to Justice Thomas's—and under which photographers, wedding singers, and the like would win, but bakers, limousine drivers, and the like would lose—see our amicus brief; for an especially interesting contrary view, see Prof. Michael McConnell's post.
