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Tuesday, May 29, 2018

SCOTUS Term: Can the Court De-Politicize Masterpiece Cakeshop and Janus?

The two most anticipated First Amendment cases of the Term, Masterpiece Cakeshop and Janus, are receiving the worst kind of attention.  The focus of these cases, because of their potentially substantial impact, has been on their politically divisive natures.  However, the efficacy of the First Amendment and the legitimacy of the Supreme Court depend on our faith in the Court’s ability to be principled, instead of purely results-driven.  With so many people watching, the Court has the opportunity to both get it right and de-politicize these two decisions.

Defusing Masterpiece Cakeshop

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, Petitioner Jack Phillips argues that the First Amendment supersedes a Colorado law requiring his bakery to make a custom-made wedding cake for a gay couple.   Because of the assignments for the December sitting, the opinion will likely be written by Justice Kennedy (although Chief Justice Roberts may take this opinion, leaving Justice Kennedy Carpenter, another criminal procedure opinion for Justice Kennedy this term).  Justice Kennedy, the likely author of the opinion, may have inadvertently inflamed the culture-wars aspects of this case.  During oral argument, Justice Kennedy remarked, “[T]olerance is essential in a free society. And tolerance is most meaningful when it’s mutual. It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”

Justice Kennedy has framed the case as deciding who deserves tolerance – the LGBT community in its desire to buy goods on equal terms as straight people, or religious people in their desire to participate in commercial artistic ventures without abandoning their faith.  This framing, however, is orthogonal to the best legal arguments in the case.  Following the doctrine, this case is about the limits of the protection against compelled speech, as applied to a product that is either pure speech or expressive conduct, in a business setting.  Unless Justice Kennedy renders a narrow opinion about religious animus by the Colorado Civil Rights Commission, the free exercise challenges are actually much weaker than the free speech challenges.  Although we should not lose sight of the fact that this case is certainly and understandably consequential to many, both practically and symbolically, the framing of this case as involving gay rights versus religious liberties is both too pointed and too broad.  The fact that Phillips is religious may not be dispositive, and the particular minority group discriminated against may not be dispositive, to the First Amendment arguments at issue.

My hope (although not my prediction) is that Chief Justice Roberts takes Masterpiece Cakeshop and disposes of it on analytically sound grounds that sidestep the case’s enticing political fault lines.  One way to do so would be to hold that blank wedding cakes without writing are not expressive conduct, because these blank cakes do not convey the seller’s message to a reasonable observer.  However, if the Court wanted to go this route, it should have simply waited for a cake that conveyed a clearer message.  Another, I believe correct, way of deciding the case that is less politically inflammatory is to say that Phillips’s wedding cakes are expressive conduct, but that this Colorado law, as applied in this case, survives intermediate scrutiny.  This sort of moderate decision would leave room for cases where a state’s public accommodations law could be struck down as chilling too much speech.  A third option, argued in an amicus brief, would be to hold that cakes are not sufficiently expressive to justify First Amendment protection, but that other, more artistic products cannot be compelled by public accommodations laws.

Avoiding Janus

I have previously written on my own blog that, whatever the right outcome in Janus v. AFSCME, the union dues case, that deference should not be given to the poorly reasoned Abood.  In Abood, the Supreme Court held that the First Amendment is violated when unions require dues to fund political activity, but not to fund their collective bargaining.  Abood has been criticized as both providing too much and too little First Amendment protection to the mandatory collection of union dues and does not have much to commend it.

I now wonder if the Roberts Court should use Janus to manifest the endurance and stability of Supreme Court precedent.  In a time where the right is calling for overruling Roe v. Wade and the left is calling for overturning Citizens United, perhaps the best course is to stay the course.

This is not to say that the Court should never reconsider its precedent, but in a case with substantial reliance interests on the holding in Abood, overturning precedent that is not manifestly erroneous or unjust, which reaches a middle-ground solution, is perhaps not proper.  I am increasingly concerned about the Justices’ and the public’s willingness to treat Supreme Court precedent so flippantly.  I look forward to all comments and to participating in this excellent symposium.

(Cross posted at In a Crowded Theater.)

Posted by Erica Goldberg on May 29, 2018 at 02:47 PM in 2018 End of Term | Permalink


Salem, your argument on the event, not the person is actually not relevant. The Supreme Court has ruled that discriminating against conduct closely related to a status is no different than discriminating against that status.

Christian Legal Society tried arguing in Christian Legal Society v. Martinez that they didn't exclude people on the basis of sexual orientation, but (in CLS's own words) "on the basis of a conjunction of conduct and the belief that the conduct is not wrong." The Supreme Court rejected their argument, noting that their decisions did not differentiate between conduct and status in that regard.

Likewise, the only reason that people are entering in a "gay" wedding is because of their sexual orientation. You cannot divorce the two there. Just as you cannot divorce people wearing yarmulkes from people who are Jewish ("a tax on yarmulkes is a tax on Jews").

Furthermore, the Supreme Court ruled in Bob Jones University v. U.S. that discrimination against interracial marriage was a form of race discrimination (again, Bob Jones University tried to argue that since they admitted black people into their University, they weren't actually discriminating against race when they expelled people for interracial dating).

There is almost no argument that can be made that discriminating against gay marriages is any different than discriminating against gay people. That is the reason why every court who has heard the argument has rejected it outright.

As far as the thing about "Well, he's not really discriminating, he's only refusing to celebrate". My question to you is if they were an straight opposite-sex couple, would they have been served? There are only two things that differentiate a straight, opposite-sex couple from a gay, same-sex couple. That is Gender, and Sexual Orientation. Both of them are protected classes. So, which is it, is it gender discrimination, or sexual orientation discrimination?

Likewise, if a restaurant said that they didn't want any of their food to goto black people, and refused to sell to white people who pledged to give their food to black events, would they skirt around the discrimination law? After all, they're refusing to sell to both white people, and black people, who will give their food to black events, so that means that they're not really discriminating, right?

Put your race instead of sexual orientation in your arguments as see if your arguments actually hold up. Your argument that he's not really discriminating because he's refusing the event, not the people is not supported by precedent.

Posted by: dunstvangeet | Jun 1, 2018 5:18:59 PM

dunstvangeet brings up a possible racial example.

Fact is that many want to treat sexual orientation to a lower standard. There are law professors who in detail spell out just that. In the 1960s, religious belief was cited as a reason not to serve black people. The Supreme Court took the argument as specious. Some didn't think so at the time. Society overall changed their mind, but now sexual orientation is up.

The argument here can be sliced thin ("celebrate") but the concern is "religious belief." There was, e.g., a great debate in early Christian practice about merely eating with non-believers. Serving them would be verboten. If merely eating lunch is a problem, "celebrate" is a somewhat arbitrary line. A wedding is special but so is any number of events. Then, you are left with how directly (cleaning staff?) the involvement etc.

Courts have determined not selling flowers or whatever to supply same sex weddings amount to discrimination by sex or sexual orientation. The thing does eventually turn on a "gay" wedding. Racial discrimination often is not complete either. It's still racial discrimination.

Posted by: Joe | Jun 1, 2018 3:45:04 PM

dunstvangeet - as I understand it, his objection is to baking cakes for a gay wedding. His objection isn't to selling them to gay people. To make the distinction sharper - suppose, as is still sometimes the custom, the wedding was being arranged by the parents. Phillips doesn't care about whether his customer is in a gay relationship, he cares about whether the wedding for which the cake is intended is celebrating a gay relationship. He would refuse to sell to a heterosexual couple whose gay child is getting married, but would sell to a gay couple whose heterosexual child is getting married. Similarly if the maid of honour were arranging the cake, a kind stranger, etc. At least, such is my understanding of his position.

If those are indeed the facts, then it's far from obvious that your analysis is on point. That doesn't mean that Phillips should necessarily win, but it will take a stronger argument than any you have yet provided.

Posted by: Salem | Jun 1, 2018 1:21:42 PM

John, let's take a look at his art: http://masterpiececakes.com/wp/wp-content/uploads/2017/08/Wedding_Cake_7.jpg

You have a straight couple that comes in and orders this art. Same design, same flavoring, same everything. Mr. Phillips goes, "Right this way." You have a gay couple that comes in and does the exact same thing, you have them go, "I'm sorry, but my wedding cakes are only for straight people."

How is that any different than if a white couple was to order this and Mr. Phillips goes "right this way", but if a black couple orders this, he goes, "I'm sorry, but my wedding cakes are only for white people."

It's discrimination, plain and simple. Now, you seem to think that because Mr. Phillips has a sincere religious belief, that he can ignore a neutral law of general applicability. The Supreme Court, in Reynolds v. U.S., said that this basically would make every man a law unto himself. The Supreme Court furthered this in Employment Division v. Smith, saying that a neutral law of general applicability would survive a Free Exercise challenge. Even Justice Samuel Alito said that anti-discrimination laws would survive even a strict scrutiny standard in Hobby Lobby v. Burwell.

The standard that I proposed is one that's actually enshrined in the law. Mr. Phillips has every right to not bake cakes for anybody. He even has the right to reject certain designs (such as Halloween cakes, as long as he'd reject the design no matter who was ordering). What he does not have the right to do is say "Only straight couples can buy my wedding cakes. Gay couples will not be served." Mr. Phillips wants that ability to actively discriminate against gay couples by withholding from them the "full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations" of his bakery.

There has been no artist's exception to public accommodation laws. If artists run a public accommodations, then they cannot discriminate on who buys their art, or services. For instance, my aunt makes hand-painted silk clothing. Each and every creation of hers is a one-of-a-kind masterpiece, and would fit anybody's definition of art (much more so than a cake). You can see a picture of her work here: http://sjimaartistsregistry.com/wp-content/uploads/2015/11/m_sly.jpg

However, she goes around to art shows, sets up a booth at those art shows, and sells not only her pre-made inventory, but also takes custom orders for her clothing. She cannot, for instance, go, "I don't want black people wearing my clothing. So, I'm not going to sell my clothing to black people. My clothing is white-people only!" She runs a public accommodation. She cannot discriminate on either her pre-made clothing, nor her custom orders. (She would never want to, but I'm just using her as an example).

Posted by: dunstvangeet | May 31, 2018 11:12:20 PM

"forced to use his artistic skills to support something his religious beliefs lead him to view as sinful"

The compromise provided is to supply a ready made cake or make generic cakes while any "artistic skill" specific to the couple (including I guess if his religious beliefs find interracial couples against God's will) is up to him.

It might be "frightening" to require this but if you run a business you are required to do a range of things -- including when practicing "artistic skills" -- that might be deemed sinful. At some point, general laws are acceptable here. You are not required to run a public business, but if you choose to do so, hiring women (including as assistants to your art) in an equal way can be required. Some find this upsetting, yes.

This are complex issues and no one is going to be satisfied no matter how it goes. So, some sort of compromise is the best thing practical. It is a matter of its terms.

Posted by: Joe | May 31, 2018 9:30:13 PM

i wonder how many times the baker has unknowingly made a cake for “chris and tim” without realizing that “chris” was a guy. still and all, dunstvangeet is the closest to what i see the court saying.

Posted by: Arnie Kriegbaum | May 31, 2018 7:51:28 PM

I disagree with dunstvangeet

I do not see a middle position in this case - either the baker is going to be forced to use his artistic skills to support something his religious beliefs lead him to view as sinful, or he won't be. The thought of him losing is truly frightening.

Posted by: john | May 31, 2018 6:53:50 PM

The way to avoid the Masterpiece Decision is actually to rule against the baker, but put in there language that limits the decision to only cakes that are already provided by the baker. The key moderate position in this is banked upon the requirement to provide the "full and equal enjoyment" part of the Civil Rights Act of 1964, and the Colorado Anti-Discrimination Act.

The baker in this case didn't get to the point of actually having his speech protected, because he refused all cakes, no matter how they were designed, no matter what the cake said, to the gay couple.

That means that if the baker is willing to make a cake for a straight couple, then he must also be willing to make that cake for a gay couple. That also means that if he's not willing to make a certain cake for anybody, then he doesn't need to provide it for gay couples.

That is the legally sound middle position here. The baker still has the right to refuse to make a cake based upon the design of the cake. However, he does not have the right to say, "Only straight people get to buy my wedding cakes."

So, the speech being the wedding cake itself is actually protected. Who buys that speech is not protected.

Posted by: dunstvangeet | May 31, 2018 4:41:28 PM

"overturning precedent that is not manifestly erroneous or unjust"

There's the question, isn't it? Is Janus deluded that he is being treated unjustly, or is the union being deluded that it could be treated unjustly if Janus wins.

If we have different conceptions of justice, perhaps we can leave certain questions to the states (like the european union does to countries), rather than make everything federal (like in China).

If we just politically segregate ourselves geographically, then we can make our own laws while forcing very few who disagree with us to go along with them. Everyone who opposes abortion-control can move to California and New York, and everyone who opposes gun-control can move to Texas and Wyoming.

Posted by: Planet of the Grapes of Wrath | May 30, 2018 6:50:49 AM

Just link to Wikipedia as mentioned :



Posted by: El roam | May 29, 2018 5:17:48 PM

Interesting indeed . I was looking for further information on that pending case , and indeed , it seems that the debate is really huge it seems . According to Wikipedia I quote :

A nationwide and state-by-state poll on issue conducted throughout 2017 by the Public Religion Research Institute as part of the annual American Values Atlas survey revealed that 60% of Americans, including a majority or plurality in every state, opposed allowing religiously-based refusals of services or products to gay people by small businesses owners (colloquially known as "the baker's exception"), while 33% supported allowing such religiously-based refusal, and 7% had no opinion…..

And more even :

Around 100 legal briefs were filed by third parties, roughly equally split in supporting either side of the case.[15] Among those supporting Phillips include the United States Department of Justice under the Trump administration.

" Hot " winter expect us …..


Posted by: El roam | May 29, 2018 5:16:07 PM

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