To the surprise of few observers, during oral argument in Masterpiece Cakeshop v. Colorado Civil Rights Commission on Tuesday, the baker’s attorney, Kristen Waggoner of the Alliance Defending Freedom, almost completely ignored religious liberty arguments. This is only logical after Employment Division v. Smith (1990), which held that laws restricting the free exercise of religion need only be neutral and generally applicable. But this strategy might have made sense even without Smith given the way similar cases were decided in New Mexico and Washington, states that still require the strict scrutiny of religious liberty claims.
Instead, Waggoner emphasized that her client Jack Phillips, who has sincere religious objections to creating wedding cakes for same-sex weddings, is an artist being required by the state of Colorado to engage in speech to which he objects. Supreme Court justices have frowned on such compulsion in the past, perhaps most famously in West Virginia v. Barnette (1943), where they held that a state may not compel Jehovah’s Witnesses to salute and pledge allegiance to the American flag. In oft-quoted words, Justice Robert H. Jackson averred:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
But had Phillips—who was found guilty of violating Colorado’s public accommodation statute by the state’s Civil Rights Commission—been asked to engage in speech or merely to bake a cake? Phillips has repeatedly contended that he would sell anything in his store to anyone, regardless of sexual orientation. He draws the line at expressing sentiments to which he has religious objections—including celebrating divorces, Halloween, or same-sex marriages. Such views may seem parochial and outdated to many readers, but whether we share his beliefs is beside the point. Few Americans agree with the Jehovah’s Witnesses regarding the pledge of allegiance, but they should be protected anyway.
Justices Sotomayor, Ginsburg, Kagan, Kennedy, and Breyer pushed Waggoner hard on the distinction she drew between bakers, florists, and photographers on the one hand, and such professions as hair stylist, makeup artist, and architect on the other. She maintained that for the most part, the latter, in doing their jobs, are not really engaging in speech but the former are. Ironically, Justice Breyer, who is expected to side with Colorado, pushed back with respect to architects, pointing to the examples of Ludwig Mies van der Rohe and Michelangelo.
Breyer’s point is not that the First Amendment should protect architectural speech; instead, he was highlighting the difficulty of distinguishing between professionals engaged in speech and those who are not. Without such a line, he contends, we could “undermine every civil rights law” including those protecting the ability of racial minorities to buy the “very basic things of life.”
Those opposed to protecting artists like Phillips are quick to invoke nightmare scenarios such as this. David Cole, the respondents’ attorney, in fact warned of a future where a “bakery could refuse to sell a birthday cake to a black family [and] a corporate photography studio could refuse to take pictures of female CEOs.” In short, we could find ourselves in “a world in which every man is a law unto himself.”
Who wants to live in such a universe? Not me. Yet as I have argued elsewhere, the national and state governments have crafted religious exemptions repeatedly without harming the common good. In the few instances where these accommodations cause significant damage, governments may repeal and have repealed them. If protections are required by the Constitution, virtually everyone agrees that if a government can demonstrate a compelling interest, it may override a liberty claim.
One could easily pose hypotheticals wherein the state would have a compelling interest in overriding the First Amendment, but in the real world there is little reason to believe that more than a handful of creative professionals have objections similar to Phillips’. In no reasonable sense does Colorado have a compelling interest in requiring this baker to engage in speech to which he has religious objections.
Jack Phillips should win this case on free speech grounds, and Justice Kennedy’s questions suggest that he is likely win by a 5 to 4 vote. Even should he do so, cases like this almost convince me to join my libertarian friends in advocating the repeal of public accommodation statutes. The free market will ensure that consumers have access to desired goods as it has already done in every real-world case involving creative professionals—and as it does for same-sex couples in the 29 states with no statewide public accommodations law prohibiting discrimination on the basis of sexual orientation.
I am almost convinced by the libertarian position . . . but not quite. In the American context, public accommodations laws banning discrimination on account of race were necessary to help overcome the nation’s dismal record with respect to race. An excellent case can be made that these laws are still necessary. As Phillips’ attorney conceded, if a creative professional objects to serving someone on the basis of race, the state may well have a compelling interest in requiring such service.
Masterpiece Cakeshop, like many difficult cases, involves competing rights. Many who consider the facts of this case will sympathize with the view that states should not compel speech and that individuals should not be discriminated against. The free market will resolve most cases involving invidious discrimination, but if states are going to remain involved in these issues they should revise their public accommodations laws to protect small businesses engaged in expressive activities. Such legislation will not end litigation over these issues, but it would significantly reduce it and would make fanciful appeals to dystopian futures less convincing. By focusing on the real world rather than hypothetical ones, we can make better progress protecting the rights of all Americans.