Bad facts make bad law, which is why the Supreme Court erred in granting certiorari in Masterpiece Cakeshop v. Colorado Rights Commission. Regardless, the court hears argument in the case on Tuesday, so let’s preview it.
As a reminder, Jack Phillips, a baker in Denver, refused to bake a cake for a gay couple’s wedding. When he was predictably sued, he claimed that his First Amendment rights protect him from anti-discrimination statutes. For more of a legal analysis of the merits, I have reviewed the case here. In a nutshell, Phillips does not have a legitimate claim, because one cannot discriminate at will simply because he sells things which happen to contain aspects of expression. Otherwise, anti-discrimination statutes would cease to have meaning or teeth.
Despite this fact, the court granted cert, notably in unusual fashion, where it re-listed the case eighteen times only to finally grant the case. And naturally, the U.S. government joined the baker.
As I have made clear, the court should not have taken this case, but not for the reasons one might think. I do not have a problem with Phillips claiming that his cakes are expressive; most of them probably are. Rather, the problem is that the facts fail to raise close questions of what constitutes compelled speech in the context of commercial goods and services.
Unfortunately for Mr. Phillips, he refused to bake a cake without even knowing what the cake would be, and his protestations of being a “cake artist” miss the point entirely. If Jackson Pollock (or Duff Goldman) himself refused to sell his art to African-Americans, he would not be protected by the First Amendment, even though Pollock was undoubtably an artist and his pieces were certainly expressive. If Phillips refused to sell a plain white cake to for an interracial wedding, his claims would have no chance. Changing “interracial wedding” to “same-sex wedding” makes no difference constitutionally, yet here we are.
Obviously, anti-discrimination statutes have limits. When minority actors were cast as all of the leads in Hamilton, I could not legitimately claim that my rights were violated, even though I have “Guns and Ships” down pat. These casting decisions are made for purely expressive purposes, they are critical to the artwork, and they are protected by the First Amendment. Now, if Hamilton refused to sell tickets based on race, that is where the show would lose First Amendment protections. To put it in dad-humor form, Hamilton’s First Amendment rights would lose the duel to the audience’s anti-discrimination protections.
The gay couple in Masterpiece Cakeshop was Hamilton’s ticket-buying audience, not the auditioning actor. Refusing services to specific classes of people is one of our most historically pernicious practices, and one which finds no shelter in our (current) constitution. Phillips did not even bother to ask what kind of cake the couple wanted. This was not about the cake, it was about Phillips not liking gay marriage and denying his goods and services – in any form – on that basis. This case should be easy.
Now, I doubt that respondents’ time at oral argument will be a cakewalk (sorry again). Of the eight talking justices, two will certainly be against them. Justice Alito will surely offer pointed hypotheticals designed to expose flaws in the couple’s argument; that’s what he does, and he is quite good at it. Justice Gorsuch will arrogantly offer hanging curveballs – which he thinks are 101mph fastballs – to the couple’s counsel and the liberal justices. But other than those two plus Justice Thomas, I just don’t see Phillips’ argument gaining traction. He has no chance with the four liberal justices, and Justice Kennedy will take umbrage with the plain white cake scenario and the racial analogies. At best, Chief Justice Roberts might vote for Phillips on a narrow basis, but that still gets Phillips to four votes, not five.
In the end, the Supreme Court could and should have taken a true compelled speech case in order to tease out of interplay between the First Amendment and anti-discrimination statutes. But it didn’t, and now the Justices are left with egg (and sugar, and butter, and flour) on their faces.