To Bake or Not to Bake

This week, the United States Supreme Court will hear arguments in Masterpiece Cakeshop vs. Colorado Civil Rights Commission.  The case involves Colorado’s civil rights statutes which prohibit discrimination based on sexual orientation.  The petitioner — a baker — claims that he should be exempt from that requirement because he believes that gay marriage is morally wrong and, by making him sell a wedding cake to the happy couple, the Colorado law is compelling him to endorse the wedding.

In many ways, this case is similar to the Hobby Lobby case from several years ago, but, in some key ways, it is different.  The main difference requires going back thirty years to a rather infamous free exercise decision, Employment Division of Oregon vs. Smith.  In Smith, Justice Scalia all but wrote the Free Exercise Clause out of the Constitution — holding that it created no exemption based on religious belief from a generally applicable law.  In response, Congress passed the Religious Freedom Restoration Act which was intended to restore the pre-Smith interpretation of the Free Exercise Clause.  There are, however, two problems with the Religious Freedom Restoration Act.  First, as shown by Hobby Lobby, it actually created more protections than the pre-Smith decisions.  Second, the United States Supreme Court has held that it only creates a rule for interpreting federal statutes and that Congress does not have the power to impose a similar rule on the states.  Because this case involves a state law, the RFRA does not apply.  While the baker attempts to raise a free exercise claim, that claim is unlikely to succeed under Smith as the ban on discriminating against homosexuals is a law of general application.  That does, however, leave the free speech claim.

The free speech claim brings us back into the Hobby Lobby universe where the question is whose perception controls.  Besides actual speech, free speech protection extends to expressive conduct.  Furthermore, as a general matter, the government may not compel speech.  The question is thus who is speaking in this case — a question that could blow a significant whole in civil rights law.

The Civil Rights Commission and supporting groups take the position that the only speech at issue here is the customer’s speech.  It is the customer that is having a wedding reception and celebrating their marriage.  The baker is just providing a product.  Since the provision of that product is compelled by law, no reasonable person could interpret the baker’s actions as an endorsement of the wedding.

The baker on the other hand — and supporting conservative groups — contends that he makes “custom” cakes.  As such, in creating a cake, he is expressing a message of support for the customer’s activities.  Since he does not support these customers, forcing him to bake a cake is compelling him to speak against his wishes.  The baker suggests that the civil rights law puts him in the position of choosing between supporting activities that he does not wish to support or giving up his business to avoid what he believes to be a sin.

Needless to say, these two views of the baker’s role — or any other service provider’s role — in the wedding reception are diametrically opposed.  If this issue had arisen in the 1960s or 1970s in the case of interracial marriages, it is pretty clear how the Supreme Court would have ruled.  The only thing that differs today is that it is two men or two women seeking to marry rather than an African-American and a Caucasian.

Part of the issue here is the nature of baking (or any other similar activity connected with an event).  I do not know who “custom,” the custom cakes are here.  From my own knowledge of friends and families, a wedding cake is not really a custom product.  There are two or three traditional designs and a handful of flavors for the cake, the filling, and the icing.  In other words, a wedding cake is custom in the same way that a car is custom.  The purchaser of a car gets to choose the color of the car and a couple of the features, but it is within the basic models that the dealership offers.  What the customer is purchasing is not the creativity of the baker but his skills — his ability to execute what the customer orders.  While artisans like to emphasize the artistic nature of their professions, they are not being hired to craft a message.  They are being hired to execute the customer’s message.

If the only message is the customer’s message, this case would then fall into the traditional view of civil rights law.  A car rental agency does not endorse the customer’s life choices in renting a car — even if the car is being rented for a special event (like a limo for a prom or wedding).  Instead, the law eliminates any message that the product/service provider may wish to send with their business.  The business is simply complying with the law by providing the good or service.  If the provision of a good or service was compelled speech, then every business that did not want to provide goods or service to any group could claim a free speech exemption.  For example, an apartment complex could claim that renting an apartment to a person a woman getting divorced reflects an endorsement of her choice to get a divorce and is contrary to their belief that women should not be able to divorce their husbands.  That is simply not the way that civil rights laws have worked in the past.

As noted above, this brings us back to Hobby Lobby.  In Hobby Lobby, there were two possible ways to characterize the case — either as the corporation being compelled to provide a particular type of coverage (birth control) in their health care policies making the employer responsible for what the employees did or the corporation simply providing a benefit (health care) with the employee choosing how to use that benefit.  In Hobby Lobby, the Supreme Court accepted the corporation’s characterization of what they were providing, creating a religious liberty issue.  We will see — probably in May or June — whether the Supreme Court takes the baker’s or the customer’s view of what the baker is doing by baking and selling a wedding cake.


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