Hunting for the Snark of Private "Expressiveness" in Masterpiece Cakeshop's Oral Argument

As anyone could have predicted (and, SSP, as I did predict in September), the Masterpiece Cakeshop oral argument's colloquy about whether baking is more, less, or just as "expressive" as hair-dressing, floral arranging, make-up artistry, wedding announcement calligraphy, or architecture was a comedy of Snark Hunting. The Snark was the elusive prey being tracked in Lewis Carroll's epic nonsense poem, The Hunting of the Snark by a band of nine characters who had no coherent notion of what a Snark might be. (Their leader, the Bellman offered "five unmistakable marks," such as "its taste, Which is meagre and hollow, but crisp" and "its slowness in taking a jest" as useless criteria). Kristen Waggoner played the Bellman's role to perfection, confidently informing the Court that architecture was not protected expression, "because buildings are functionable, not communicative." Cake-baking, by contrast, was, Waggoner asserted several times, definitely expressive, because it expresses creative expression. Carroll's Bellman offered a similarly confident test for Snarks:

"Just the place for a Snark! I have said it twice:
That alone should encourage the crew.
Just the place for a Snark! I have said it thrice:
What I tell you three times is true."

Despite O'Brien and Spence, expressive conduct, like Carroll's Snark, is everywhere and nowhere. All conduct deliberately chosen sends a message, and, if the government's prohibits it because of its message rather than its non-expressive effects, then the prohibition is likely content-based regulation subject to heightened scrutiny. As then-Professor Kagan persuasively argued two decades ago, it is governmental purpose, not private expressive intent or effects, that normally determines whether a law is a prohibited regulation of speech.

The SCOTUS extricated itself from its Snark Safari only when the justices finally focused on Colorado's likely purposes in prohibiting Jack Phillips from refusing to make wedding cakes for same-sex nuptials. By page 51 of the transcript, Justice Kennedy asked Colorado's Solicitor General Yarger whether a Colorado Commissioner's remarks about religious motivation's being "despicable" indicated hostility to religion in violation of the Free Exercise clause. After the jump, I will suggest that governmental hostility to a purely secular ideology would equally violate the First Amendment's Speech clause. The difficulty, of course, is proving up the bad motive, and, on that practical question, I have argued that a decent respect for federalism suggest maximum deference to Colorado's good faith.

1. Why a governmental purpose of stigmatizing Jack Phillips' beliefs about his complicity in commerce is a forbidden purpose

Suppose that the Colorado Human Rights Commission knew that there was no necessity whatsoever for any particular baker to supply wedding cakes to same-sex ceremonies, because the market for bakers was really thick. the streets of Jack Phillips' city are lined with bakers, each vying to sell cakes that Jack refuses to supply. Moreover, suppose each baker can and does costlessly signal to prospective buyers their willingness to supply such cakes through signage ("same-sex wedding welcome here"). The Commission, however, insists that each baker stand ready to supply cakes for same-sex ceremonies solely because the Commission believes that moral disapproval of same-sex ceremonies is simply an improper motive. "Commercial actors should not act on the basis of prejudices like that," the Commissioners declare. While allowing vendors to discriminate against customers on other non-commercial criteria -- say, wearing a MAGA cap -- the Commission construes Colorado's law to forbid commercial actors from acting on certain non-commercial motives not because of any material harms imposed by such action (remember, the market for bakers is conceded to be an infinitely thick market) simply because, in the Commission's view, such action is an affront to customers' dignity.

Such a governmental purpose looks to me remarkably like censorship of a message based on the government's hostility to the message's content. The Commission or Colorado Legislature believes that a commercial actor's decision not to serve sends a message that the government wants to discourage. There is no material harm from the discrimination in question: The harm is solely the message conveyed. In effect, the government bans the bakery from putting up a sign

The content-based character of such a purpose becomes plainer to me by imagining an analogous prohibition on "internal assignments." Suppose that Colorado decided that employers should not be permitted to accommodate their employees' religious objections to baking a cake for a same-sex ceremony by assigning employees without such objections to the same-sex ceremony cakes. "You must treat same-sex ceremonies exactly as you would other ceremonies," the Commission declares to such bakers: "commercial actors like employees waive their rights to have religious scruples by voluntarily working for a commercial enterprise." Given that the customer gets exactly the same cake regardless of the employer's internal employee assignment policy, the only possible purpose of such a prohibition is simply to forbid employees from conveying a particular message that the employees seek to send -- namely, that their beliefs about complicity are relevant to their job.

If the gratuitousness of a ban on internal employee assignments is explicable only as content-based censorship, then a ban on a baker's referring a customer to a neighboring baker in an infinitely thick market seems equally gratuitous and, therefore, equally content-based. The only difference is that the message being censored is the employer's and not the employee's -- a distinction without a difference where both actors are equally commercial and have equally narrow or broad expressive rights.

2. Why such a purpose-based argument is not a good reason to overturn the Colorado court

So should SCOTUS reverse and remand for further fact-findings on purpose? I have argued that respect for federalism's role in defusing deep disagreements should lead the Court to affirm by deferring heavily to Colorado's characterization of its purpose. If it is at all plausible to regard Colorado as having an interest in protecting against a material as opposed to purely dignitary harm, then the Court should infer such a legitimate purpose. The question of whether Colorado's law "harms" bakers or bakers' discrimination "harms" customers is, to my mind, largely indeterminate. It is a certainty, however, that we Americans have vehement disagreements about the question that different states, red and blue, can equally well accommodate. Federalism is a meta-accommodation of our rival views for how best to accommodate rival dignitary interests. As General Francisco noted during the oral argument, "I would not minimize the dignity interests to Mr. Craig and Mr. Mullins one bit, but there are dignity interests on the other side here too."

This federalism-based case for deference does not apply to interpretations of laws limiting federal power. It would not apply, for instance, to an argument for using RFRA to curb a federal anti-discrimination law analogous to Colorado's. Indeed, the ability of states to waive RFRA's requirements, protected not only by Boerne but also by principles of statutory construction like Catholic Bishop, makes decisions like Hobby Lobby more tolerable.

If it is only Colorado doing the regulating, however, then there is a powerful case for agnosticism about the law's purpose. Such agnosticism conveys the message to Right and Left that their rival views can find a home some place in the federal republic. And, unlike the Hunt for Snark-like "expression," the search for improper governmental purposes at least tracks a type of prey that actually exists, even if, with the right level of deference, the beast always manages to escape.