Who Cares Whether Cake-Baking Is "Expressive"? The Doctrinal Costs of Focusing on Private Burdens Rather Than Governmental Purpose

In their focus on the creative artistry of wedding cakes, the briefs that are now piling up in Masterpiece Cakeshop read more like an episode of Cake Boss rather than a typical SCOTUS argument. Many focus on a question that, I shall suggest after the jump, ought to be legally irrelevant -- whether baking a wedding cake is sufficiently "expressive" to qualify as "speech" the compulsion of which violates Wooley v. Maynard's "forced speech" doctrine. Baker & Botts has submitted an amicus brief on behalf of "cake artists" that dives the deepest down this particular rabbit hole of edible art by supplying the justices with numerous photos of (admittedly gorgeous) cakes the sole point of which is to prove that cake-makers are artists entitled to the same protection from regulatory burdens that any other artist enjoys.

The problem with this focus on the burdens experienced by artists is that, as Elena Kagan and Jed Rubenfeld both argued roughly two decades ago, it should be, legally irrelevant. First Amendment doctrine generally focuses on governmental purpose, not private burdens. If the local health department, for instance, forced Jack Phillips to post a sign ordering employees to wash their hands after using the bathroom, the content-neutrality of the requirement's purpose (at least prior to the stringent formalism of Reed v. Town of Gilbert, which may have caused the law of warning signs to fly off the rails) and its commercial purpose would sustain the rule, regardless of how artistically Phillips wielded his spatula. By contrast, even if Phillips were a mere confectioner drudge devoid of creativity, it would raise a serious constitutional question for the Colorado Human Rights Commission to require him to post a sign declaring that same-sex marriage is morally equal to heterosexual marriage. The difference between the two rules is not the private burden imposed but the public purpose expressed: The first sign is patently aimed at prevention of spread of disease, whereas the second seems to aim at barring the spread of ideas.

And yet the Masterpiece Cakeshop briefs, in kind of odd doctrinal atavism, focus on some old burden-based tests derived from mostly outmoded precedents like O'Brien and Spence. First Amendment Speech and Press doctrine of "expressive association," combined with "forced speech" precedents like Wooley, invite briefing on the incidental burdens on bakers' expression by even content-neutral anti-discrimination law. Despite the urging of Kagan and Rubenfeld, there is still no Speech & Press clause precedent analogous to Washington v. Davis or Employment Division v. Smith presumptively making the presence or absence of a content-neutral purpose the test of constitutional liability.

After the jump, some thoughts about (1) why this focus on private burdens rather than governmental purpose comes at a high doctrinal cost and (2) why courts and litigators are tempted nevertheless to pay the price anyway.

1. The Costs of Burden-Based Approaches to Private Rights

Measuring constitutional liability by assessing private burdens invites one of two judicial responses. First, courts can define the forbidden type of burden by some categorical rule that does not require comparison of private burdens against the challenged regulation's public benefits. Second, courts can treat the right to be free from excessive burdens on their expression as a defeasible rule that can be outweighed by a sufficiently compelling governmental interest. Either approach tends to be practically costly: The categorical rules tend to be badly matched to any plausibly constitutional purpose, while the mushy balancing looks illegitimately legislative.

The Becket Fund's excellent amicus brief provides a good example of a question-begging categorical rule. Becket Fund's brief valiantly defends an apparently crisp doctrine: No one can be forced to "participate in wedding ceremonies," period. On the Becket Fund's theory, it does not matter whether or not Jack Phillips has poured his artistic heart and soul into his cake batter (brief at page 14 n.7), because "regardless of whether wedding cakes are expressive (they are), there can be no doubt that weddings themselves are highly expressive" (id. at page 13), and First Amendment free speech doctrine bars Colorado from forcing Phillips to "participate in" someone else's expressive event. "The government simply has no power to force anyone to celebrate, clap, salute, praise or otherwise support another’s religious event," the Becket Fund asserts. On this view, the First Amendment bars Colorado from forcing anyone, even "unartistic" businesspersons like hotel owners, limo drivers, furniture renters, and the like from being dragooned into "supporting" or "participating in" a ceremony.

Alas, the crisp character of the Becket Fund's rule breaks down as soon as one digs a bit deeper into what it means to "participate in" a ceremony. After all, Jack Phillips is not being asked to show up at the ceremony, let alone "celebrate, clap, salute, [or] praise" it: He is being asked to deliver a product to the site of the reception, presumably before the ceremony even occurs. So why is the sale and delivery of a product a form of coerced "participation"? PruneYard Shopping Center was not forced to "participate in" pro-Israel activism merely by being forced to let the activists occupy its real estate. Why is Phillips being forced to "participate in" a wedding ceremony merely he is forced to let a same-sex couple occupy his cake?

To make the leap from cake-baking to "participation," the Becket Fund has to re-introduce the "Cake Boss" argument: According to the Becket Fund, cakes are "communicative," because a "large fancy cake" will "send and celebrate messages about the couple" (Page 24). Jack Phillips' cakes are indeed fancy, and they might indeed promote a celebratory mood among the guests. If that message is entirely incidental to the public accommodation law's purpose, however, then why should such a communicative effect matter? Suppose that the local health department requires Phillips to use pasteurized milk even though Phillips vehemently believes in the health benefits of raw milk: If his use of pasteurized milk dilutes Phillips' capacity to send a message of contempt towards pasteurization, then must the law be subject to heightened scrutiny? To ask the question (I hope) is to answer it: The government's genuine desire to protect public health cannot be stymied merely because it conflicts with someone's expressive project, if the government has no interest in suppressing that project.

The United States' amicus brief illustrates the other lemma of burden-based arguments -- not the metaphysical silliness of trying to distinguish between "expression" and plain old "conduct" but rather the political illegitimacy of judges' engaging in cost-benefit balancing for which they have no institutional advantage over the legislatures they are reviewing.

According to the United States, Colorado's law banning discrimination based on sexual orientation unconstitutionally compels expression without an adequately "compelling" justification. By contrast, the United States urges that a similar prohibition on racial discrimination would be justified even under "heightened scrutiny," because the states' racial classifications are subject to strict scrutiny under the Fourteenth Amendment's Equal Protection clause. This dragooning of "suspect classification" doctrine into the role of resolving a conflict between rival values of private expressive autonomy and public enforcement of equality shows how badly lawyers are likely to perform in striking such balances. The doctrine of suspect classifications governs state actors' use of racial classifications, not private actors' expressive rights: Private parties are constitutionally entitled to draw suspect classifications in their racist speech. The First Amendment's Speech clause, after all, protects Nazis' marching in Skokie and similar racist speech. Presumably, the First Amendment would also immunize those parading Nazis from being required to carry signs praising racial and religious equality. If a public accommodations law really forces a racist to display a message with which the racist disagrees, therefore, it does not seem plausible to say that the state's compelling interest in suppressing racism justifies that law, anymore than the state's interest in suppressing racism justifies Skokie's shutting down the Nazis' parade or requiring them to recite MLK's "I have a dream" speech.

Behind the argument for purpose-based doctrine lies John Hart Ely's institutional insight that courts have no institutional advantage over legislatures and bureaucrats when the latter act for constitutionally acceptable reasons. If non-judicial lawmakers do not seek to undermine expression, then they are trustworthy enough to balance the value of expression against other benefits without aggressive judicial oversight. Of course, even a pure-minded legislator or bureaucrat might negligently slight speech by carelessly imposing a rule with costs for expression exceeding the rule's non-expressive benefits. Except for Judge Posner (who has Herculean confidence in judges' or at least his own balancing abilities), we ordinarily believe that the democratic and bureaucratic process suffices to cure these mistakes just so long as the non-judicial decision-makers are not actually hostile to the messages that they accidentally curtail.

2. So why do we not have a wholly purpose-based speech doctrine?

The doctrine of "expressive association" in Boy Scouts of America v. Dale revived the idea that private expressive rights should be determined by a judicial assessment of how much a law burdens the right-holders' capacity to communicate a message. Rumsfeld v. FAIR peremptorily trimmed back on Dale's burden-based analysis by peremptorily limiting Dale to laws affecting an organization's membership, but, because FAIR gave no real reasons for its limit, any good lawyer can distinguish FAIR and set Dale's burden-based zombie back on its feet when the facts differ from FAIR's. That is why the United States' amicus brief cites Dale twelve times: Dale provides a little island of burden-based doctrine in a sea of doctrinal hostility towards challenges attacking content-neutral laws.

Why do lawyers and judges persist in pressing and accepting burden-based arguments in the special enclave of "expressive association" doctrine when they have mostly been abandoned in other areas? One reason might be suspicion about the real purpose of anti-discrimination laws. Although such laws do not facially target speech, they might seem to have a hidden agenda of stigmatizing business owners' beliefs under the guise of protecting access to goods and services. When applied to non-profit associations that do not sell anything (e.g., the Boy Scouts) or to small retail businesses for which there are many competiting suppliers of whatever is being sold (e.g., Masterpiece Bakeshop), the minimal material benefits of the law suggests that it is less a content-neutral effort to insure equal market access and more a content-based effort to stigmatize the message conveyed by the business owners' refusal to serve. Dale seems to offer such a purpose-based argument for striking down New Jersey's enforcement of its anti-discrimination law against the Boy Scouts in its penultimate sentence's quotation of Hurley: Anti-discrimination law, according to Dale, is not free to interfere with speech "'for no better reason than promoting an approved message or discouraging a disfavored one, however enlightened either purpose may strike the government.'" In emphasizing New Jersey's bad reasons for burdening the Boy Scout's speech, in other words, Dale justified a burden-based rule with a purpose-based rationale. (I argued that Dale had such a purpose-based rationale ‘way back in 2003).

Put to one side, for a moment, the question of whether Masterpiece Bakeshop ought to prevail under such a theory. (My own view FWIW is that proper deference in a federal system to a state's characterization of its own legislative purpose should lead the SCOTUS to uphold Colorado's law). Would it not be better if this sort of purpose-based rationale played a more prominent role in the Masterpiece Bakeshop argument? I could imagine Colorado's defending its law on the ground that allowing retailers to refer customers to competing businesses would impose unequal regulatory burdens on businesses located in small towns with thin markets. I could imagine Masterpiece Bakeshop responding that such a system of facilitated referral would so easily accommodate the state's legitimate ends that forcing Jack Phillips to bake the cake rather than refer the customer to another bakery could serve only the purpose of gratuitously stigmatizing Phillips' beliefs. All of these inquiries make sense to me as a judicial investigation of the state's reliability as a fair regulator of the marketplace for confections that does not seek to take sides in the marketplace of ideas.

But what I cannot really understand is why any court would want to adjudicate the question, constitutionally meaningless to me, of whether Jack Phillips is an artistic craftsman or instead just a businessman. He is obviously both, and I cannot see why constitutional law should care.