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Friday, December 08, 2017

Who's Being "Coerced" in Masterpiece Cakeshop? (or, Why Everyone Thinks They Play Defense in Baseline Hell)

Marci Hamilton's column on Masterpiece Cakeshop's oral argument provides a great example of the futility of a particular type of rhetoric in Baseline Hell -- the rhetoric of outrage over invasion of private rights. According to Professor Hamilton, Jack Phillips, the baker, cannot plauisbly argue that conscripting him to provide a cake for a same-sex wedding will force him to endorse the wedding, because his cake's meaning is determined by the couple who are getting married. In Hamilton's words, "[t]he baker has no say on the meanings at the event," because "the couple has the absolute power to determine who speaks and what they say." Indeed, by purporting to determine the meaning of his cake once it has left his shop, Jack Phillips is actually attempting to control a private marriage ceremony. "If the couple can’t determine the meaning of Phillips' cake], the ceremony has been stolen from them by an outsider’s purposes, and, in this case, shamelessly politicized."

One might think that it takes a bit of chutzpah to describe Phillips as "stealing" a ceremony that he so obviously wants to avoid. Moreover, if there are lots of competing bakeries willing to supply an equivalent cake to the couple, then the couple's insistence that only Phillips' cake will do could be characterized by the uncharitable as the couple's "shamelessly" politicizing Phillips' shop. Advocates of same-sex marriage have won the Culture Wars (rightly, in my view). Must they also spike the ball in the end zone by forcing a handful of family businesses with religious objections to supply products easily obtained elsewhere? What material harm can an exemption for businesses like Phillips' really inflict? As for dignitary harms, I would agree with General Francisco's statement at 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."

But I am inclined to leave off the "shameless" and say instead that everyone legitimately believes that their private rights are being invaded in Baseline Hell. "Baseline Hell" is that infernal state in which there are no intuitively obvious entitlements by which to assess who is coercing whom. When pervasive common-law rights collide with pervasive regulatory schemes, the beneficiary of each can plausibly argue that they are merely trying to defend themselves from someone else's meddling encroachment. Phillips' confection sits squarely at the center of this legal inferno. On one hand, the law bars Phillips from discriminating on lots of grounds; on the other hand, the law also allows Phillips to choose his products and customers. If Phillips refused to supply pies for a pie-eating contest on anti-gluttony grounds, a cake denouncing same-sex marriage on religious grounds, or a "MAGA cake" on anti-Trump grounds, he'd likely be within his common-law entitlement (assuming that support for Trump is not a religion). Phillips can plausibly argue, therefore, that, in light of the background autonomy normally protected by Colorado's common law, forcing him to supply a cake for a same-sex ceremony treats his religious objections as less weighty than analogous reasons that the law respects. (This seems to be the burden of Douglas Laycock's and Tom Berg's amicus brief). On the other hand, Phillips' store is also barred from discriminating against customers on a lot of grounds, including but not limited to sexual orientation. If Phillips gets a "special" exemption from such laws only for services provided to same-sex wedding ceremonies, then the couple who is denied service can argue that constitutional law signals them out for a discriminatory burden that, say, the celebrants of a mixed-race marriage would not face if confronted by analogous race-based discrimination (at least, if the Court accepts the theory of the United States' amicus brief that prohibiting race-based discrimination is just more compelling than anti-gay discrimination).

In short, everyone plays defense in Baseline Hell. I would let each state set the baselines best suited to its voters' beliefs and (in this case) affirm the Colorado court's decision. But I am a hopeless federalism nut and acknowledge that nationalists might instead want SCOTUS to choose the One True Baseline for the entire nation. My only plea to Hamilton is that rhetoric about one side's "stealing" a wedding is both meaningless and gratuitously inflammatory. In Baseline Hell, the polite thing to do is to acknowledge that private rights are too disputed to allow anything more than a decision to choose one set of baselines by fiat.

Posted by Rick Hills on December 8, 2017 at 02:04 AM | Permalink


While it is always unjust discrimination to discriminate against a person solely based upon one's ethnicity, it is never unjust to discriminate between appropriate and inappropriate sexual behavior. The multitude of decent and honorable men and women who affirm that marriage, by its inherent nature, is restricted to a man and woman existing in relationship as husband and wife, cannot be accused of animus because they respect the Sanctity of the marital act, which is a rightly ordered desire/inclination/orientation, within the marital relationship, which every Faithful Catholic recognizes as The Sacrament of Matrimony.

What differentiates a wedding cake from every other type of cake is that a wedding cake is used to celebrate a wedding, in this case, of two persons who deny and thus discriminate against the Sanctity of the marital act, which is Life-affirming and Life-sustaining, and can only be consummated between a man and woman, united in marriage as husband and wife.

Intimate choices may define one's beliefs on sexual morality, but they do not define personhood. What then would be the state's compelling argument for creating a generally applicable rule that would deny the Sanctity of the marital act, and establish the equality of sexual acts and sexual relationships? Where would the line be drawn in regards to compelling those who respect the Sanctity of the marital act, to affirm and condone sexual acts that do not respect the inherent Dignity of the human person as a beloved son and daughter, and how would it not be possible to deny our inherent Right to Religious Liberty, simultaneously?

No, it is not due to animus that Love requires that we Love our beloved enough to desire they always be treated with Dignity and respect in private as well as in public.

Posted by: N.D. | Dec 13, 2017 1:44:22 AM

I left unconvinced by the argument that requiring the baker to provide the cake would be the equivalent of requiring him to express support for a gay wedding of which he did not approve. If the law requires him to make a cake for a gay wedding, then no one would think that doing so expresses his support for it. After all, he has no choice.

I also think a lot of the slipperiness of this case is about the meaning of the word "create," as in he is not willing to "create" a cake for a gay wedding. Almost all wedding cakes are "created" for the occasion, even if they are standard designs with no customization. That's just the nature of a wedding cake: it's large, it's not a commodity item, it has to be fresh for the event, etc.. The concession that the baker would sell "off the rack" baked goods is pretty much irrelevant, if it is meant to reserve the right to refuse to provide a wedding cake, which is never really "off the rack" in that sense.

Posted by: Wondering | Dec 11, 2017 1:45:17 PM

"On one hand, the law bars Phillips from discriminating on lots of grounds; on the other hand, the law also allows Phillips to choose his products and customers."

I am a big fan of private property rights so for me the baselines don't feel equivalent. Giving Phillips the right to exclude people generally but not for some specific reasons feels odd and irrational to me. It is his property so he should be allowed to serve or refuse to serve whoever he wants.

While who gets what property rights can be arbitrary I don't think it would work to say that the customers have a right to be served. Under some circumstances one could of course recognize a property right in receiving services from a company, such as when a contract has been signed, but they clearly don't have a legal right to be served in general (if Phillips wanted to close his bakery that would be fine).

Posted by: Jr | Dec 10, 2017 6:33:46 AM

The guy in a public accommodation sells a product and is being told he cannot discriminate. The usage of terms like "conscription" with 13A type implications is a tad risible. The word has strong implications and it underlines the overheated rhetoric used in this context.

Anyway, I respect some flexibility in this context -- e.g., when a state wanted to keep religious displays from in front of the statehouse, I would have allowed that as a matter of discretion. But, at some point, there are national rules, both mandatory and discretionary under congressional law. The same locally -- states don't give cities home rule over everything.

Federalism includes a sort of governmental application of Jesus' rule -- render to the the feds etc.

Posted by: Joe | Dec 9, 2017 12:38:24 PM


Be nice if Marci has upped her game.

Posted by: Art Deco | Dec 9, 2017 11:39:20 AM

Very interesting post as always, Rick.

For my quick take on the case, which includes a discussion of Nazorene the Baker from "The Godfather" -- who very much wanted to be associated with the cake he baked for a wedding -- see here: https://dilleradollar.wordpress.com/2017/12/07/thoughts-on-masterpiece-cakeshop/

Posted by: Paul Diller | Dec 8, 2017 7:04:43 PM

"...there are lots more gay people than there are custom cake bakers."

It may be true even if we divide by two. But I don't think such arithmetic does the trick.

Reducing constitutional claims to math problems is a bad way to go. Pragmatic concerns go toward establishing the government's interest at stake, but rights can't be determined based on how convenient they are.

Consistent with Kennedy's comments during oral argument, I think Kennedy dispatches the case by remanding to the lower court to decide whether Phillips discriminated on the basis of identity qua identity, limiting the government's compelling interest in combating discrimination to that basis. There is a non-senile argument to be made on that score. I'm not entirely sure how we balance all the plates of cake in this case and think it probable the opinion won't be the most clear cut. I do hope that all the opinions are filled with cake puns.

Posted by: Joseph | Dec 8, 2017 2:58:54 PM

As "biff" said to you about your last post, there seems to be an inconsistency between how you describe what you propose and what you're actually proposing. I believe you actually consistently propose a national baseline whereby states would be forbidden from protecting against "purely dignitary harm" as opposed to material harm, or regulating discrimination at the margin with the sole motive of hostility to discriminatory ideologies. Then you say, "but, because I want to defuse deep disagreements, I'll defer to states' characterization of their purposes in applying that rule, thereby functionally having no national baseline at all."

Well, (a) you've still got a national baseline, just one that you refuse to seriously apply, (b) if these purposes are unconstitutional, I don't know why you want to turn a deferential blind eye to them, and (c) it seems to me that the deep disagreements are over the appropriate baseline, not the fact of the matter about whether a particular state acted to protect solely dignitary harms in a particular application or is also protecting against material harms. As you describe your own rule, there would be a violation if Colorado knew there were lots of other bakers in Craig and Mullins' neighborhood standing ready to bake them a wedding cake. There can't be a deep disagreement about whether that's the case and it shouldn't be too hard to figure out. (Of course Colorado must have known that in some applications of its public-accommodation law, there would be enough merchants willing to sell a minority group something that absent the law there'd be no difficulty with their finding that good or service, though the state may not know which applications those are ex ante or even ex post, since their law doesn't turn on the matter and they therefore have no reason to find out what the wedding-cake-availability situation is.)

If you really care to defuse deep disagreements on this subject, you should be saying something more like, "here's my view of the First Amendment in this area, I think it's sound, but there's a deep disagreement about whether it's right, so I don't think it should be doctrine, even a toothless doctrine; rather, the states should be permitted to either extend or deny exemptions from their public-accommodation laws on account of religious beliefs." I might still view that as federalism nuttery but at least it seems a more sensible point at which to position the nuttery.

Posted by: Asher Steinberg | Dec 8, 2017 2:50:23 PM


You are too willing to split the difference. Regardless of the conceptual, legal or moral arguments on each side there is a strong pragmatic case for siding with the gay couple, namely that there are lots more gay people than there are custom cake bakers. Although I doubt that a "dignity interest" is a quantifiable thing if it were quantifiable and we totaled the dignity harms to a few thousand custom cake bakers and weighed them against perhaps a million gay couples I have no doubt that the gay people would win the victimization battle, even assuming that religious affronts are more valuable than sexual affronts.

I suspect that such an outlook is wholly unacceptable to lots of people for lots of different reasons but my point is that Masterpiece doesn't have to be a difficult case to resolve. It's difficult to resolve because the case turns on the idiosyncratic views of one justice: Kennedy. It is likely that when he retires and is replaced the whole issue becomes moot one way or the other and anything he writes now will be seen as the fretful hand wringing of a senile old man.

Posted by: James | Dec 8, 2017 1:50:42 PM

This case inspires endless, albeit understandable, confusion. Professor Hamilton's characterization is incorrect. The argument presented to the Court is not that Phillips' speech will be somehow unconstitutionally appropriated. That would be like an author of a book objecting to his work being read at a KKK rally. That's not the argument here.

The argument made by Phillips' lawyer Waggoner is that a cake can be expressive, like a book, and that he cannot be compelled to create such expression on demand. Thus we saw the concession that Phillips would sell any off-the-shelf baked goods even for a same-sex wedding. It is probable such a concession wouldn't be made in the context of a religious freedom argument, but the case before the Court concerns a free speech argument.

When asked by Justice Ginsburg about a same-sex couple seeing a pre-made cake and declaring they wished to buy it for their wedding, Waggoner answered, "The compelled speech doctrine is triggered by compelled speech. And in the context of a pre-made cake, that is not compelled speech."

Obviously it doesn't make a difference how artistic the cake on the shelf is. The act of selling that cake (or book) on the shelf is not itself speech.

Waggoner was also fairly clear that artistry isn't the deciding issue here, although artistry goes toward qualifying as an act of expression. Aside from the compulsion issue, the cake-as-speech argument boils down to a wedding cake being a symbolically expressive creation. Thus preparing a gourmet meal or styling hair, for all their skill or creativity, may be distinguishable as not symbolic/expressive of anything.

We may not find the speech argument terribly persuasive, but understanding the limited nature of the argument avoids some of the confusion.

Posted by: Joseph | Dec 8, 2017 1:15:45 PM

"nationalists might instead want SCOTUS to choose the One True Baseline for the entire nation"

Huh? We "nationalists" may hope that one day *Congress* creates a national "baseline," such as by extending Title II to all ordinary businesses and to cover sexual orientation. That's not even something anyone has proposed, however (i.e., it's a long way off). And in any event, surely no one is urging the *SCOTUS* to magically extend Colorado's law to all other states. So I'm not clear on the nature of your (false) equivalence implication.

P.S. If you are opposed to nationwide resolutions of such questions, do you think the '64 Civil Rights Act should be repealed--or, at least, should not have been enacted at a time where there was significant regional opposition?

Posted by: Marty Lederman | Dec 8, 2017 8:07:13 AM

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