In their focus on the creative artistry of wedding cakes, the briefs that are now piling up
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HERE’S AN ALTERNATIVE ANALYSIS
The Washington State Supreme Court unanimously ruled just a few months ago that a florist who had repeatedly served a gay couple nevertheless illegally discriminated against them when she refused to provide flowers for a wedding of two homosexual men.
But would she be equally guilty if she refused to provide flowers for white supremacists celebrating the murder of a black person, or heterosexuals glorifying the rape of young girls? This is similar to instances where bakeries in Indiana, Colorado, and Oregon were sued for refusing to provide wedding cakes with two grooms on the top. In each of these cases, the refusals were based upon strongly held religious beliefs which reject same-sex marriages, and their participation in them.
While these cases seemingly create an irreconcilable conflict between religious freedom and freedom from discrimination, there’s a simple way to safeguard both very important interests.
This novel answer is to simply follow the clear language of the anti-discrimination statutes, and punish denials of services where they are based upon the status of the PERSON requesting service (e.g., gay, female, black), but not when the denial is based solely the ACTIVITY to which the merchant strongly objects, and feels would violate his religious or other deeply held beliefs.
Note that religious Christians who do not wish to sell he-and-he wedding cakes for gay weddings – like religious Jews who do not want to bake swastika-shaped cakes for the KKK, or Muslims who do not wish to cater weddings at which alcohol will be served – might be able to do so legally by having a uniform business policy which applies equally to all prospective purchasers, regardless of the customers’ individual sexual orientation, religious beliefs, etc.
In states which have laws prohibiting discrimination against people based upon their sexual orientation, it would be illegal for a baker to refuse to sell any kind of cake to a person simply because of his sexual orientation. But refusing to sell a wedding cake with a same-sex statue or a male-male floral arrangement to anyone at all, regardless of sexual orientation, would not violate the words of the statute since nobody is being discriminated against because of their own sexual orientation.
So, if a baker would refuse to prepare and sell such a cake to a gay person, but would do the same (i.e. deny it) if the request for exactly the same cake came from a best man who is straight, or from the heterosexual mother of one of the celebrants, the letter of the law wouldn’t be broken because the refusal is not based upon a protected characteristic of the customer such as sexual orientation, but rather upon the activity the devout merchant is being forced to support – same-sex weddings.
Similarly, a Jewish bakery might have a policy against baking a cake in the shape of a swastika, whether it is ordered by a German Nazi sympathizer, a racist fraternity, a Jewish student seeking to “take back” the hated symbol (similar to a recent situation at GWU), a crude friend who wants it as a joke, etc.
In each case, there is no discrimination based upon a protected factor because the baker is treating all prospective purchasers the same, regardless of sexual orientation, gender, religion, etc.
One advantage of limiting anti-discrimination statutes to protection against refusals to serve customers based upon the customers’ own sexual orientation, but permitting businesses and others not to utter messages (including cake decoration, flower arrangements, etc.) of which they disapprove, means the government (bureaucrat or judge) doesn’t have to engage in a subjective balancing act regarding how compelling is the government’s interest, are there other feasible approaches, how expressive are flower arrangements, wedding cakes, etc.
It also does not unfairly elevate religious freedom above similar desires not to participate based upon ethical/moral grounds rather than religious ones.
For example, there are many bakers – including those who are agnostics or even atheists – who have very strong objections to what the Nazi swastika stands for, and would refuse as a matter of conscience not to bake such a cake, regardless of who ordered it and for what purpose.
The problem with trying to use religious freedom arguments to protect people such as these bakers put into such situations is that it would protect bakers who refuse to make such cakes based upon their own religious beliefs, but not those who do it for simple moral or ethical considerations, he says.
Doing this – permitting merchants to refuse to provide services based upon the activity they are being forced to support, but not permitting them to deny services solely based upon the characteristics of those requesting the service – would eliminate this unnecessary disparity.
Most people would probably agree that no baker should be required to prepare a cake with a symbol to which he is strongly opposed, for religious or for other ethical or moral reasons. No baker should be forced to bake a cake encouraging (or opposing) abortion (depending on his point of view), supporting or opposing gun control, depicting sexual activity or witchcraft, etc. against their wishes.
This simple distinction is illustrated by two recent decisions involving bakeries. Recently, the Colorado Civil Rights Division ruled that a cake shop could not refuse to make a wedding cake for a gay couple, calling it discriminatory, because its refusal was based upon the sexual orientation of the customers.
However, when a man ordered cakes with writing a Denver bakery considered derogatory towards gays, its refusal to provide the cakes was upheld because the bakery would refuse to provide a cake with that language to any potential customer – gay or straight, Christian or atheist, etc., and for any purpose.
Although the customer claimed that the refusal to provide a cake with this message was “demeaning to his beliefs,” the agency said the owner was within his rights to refuse to put a message on cakes which included “derogatory language and imagery,” provided it would do so for all customers.
These two decisions illustrate how such an approach can work in practice. No bakery can refuse to provide services to customers, just because they happen to be Christian, gay, black, female, etc. However, every merchant would be free not to support by participating in an activity to which he is strongly morally opposed – whether because of religion, or for reasons of ethics, morals, or good taste.
No civil rights official or judge has to make any decision about whether the religious motive is sincere, whether the state’s interest is sufficiently compelling, whether an owner’s religious views should give a business more leeway than other businesses to refuse service, or how much First Amendment protected speech is involved in providing the service.
To the question of how can the government tell whether the refusal to provide a particular service is based upon the sexual orientation of the customer, or simply the activity which the service would support, the government can use the same technique utilized in traditional civil rights cases.
If a real estate broker refuses to show or sell a house to a black couple, but does the same when confronted with a similarly situated white test couple, the refusal to provide service was not based upon race.
Similarly, if a baker refuses to sell a same-sex wedding cake not only to a gay couple, but also to straight (even test) customers, there is no discrimination based upon sexual orientation.
There is no inherent conflict between religious freedom and a freedom from discrimination, if anti-discrimination statutes are simply interpreted this way.
PUBLIC INTEREST LAW PROFESSOR JOHN BANZHAF
Posted by: LawProf John Banzhaf | Sep 16, 2017 6:12:53 PM
Would you rather your pregnant wife drink a bottle of vodka or raw milk every day while pregnant?
Posted by: raw milk doesn’t mutate pregnancies | Sep 12, 2017 6:32:12 AM
How about we make raw milk prescription, like opioids. Adults seem to be able to take opioids without problems (otherwise we’d ban them), so they should be equally responsible enough to take raw milk.
Posted by: prescription raw milk | Sep 12, 2017 1:36:03 AM
Joe, “bloody silly” was an overstatement—I think I just believe more in shaming and shunning for this kind of isolated & small-scale bigotry. Mostly because it seems like it would be a more effective strategy, given that large majorities of Americans support same-sex marriage.
I also don’t know what it’s like in really red areas though. Do the bigoted bakers actually get shamed once people recognize their bigotry? (They definitely would in somewhere like Iowa City—a baker who refused to serve same-sex couples would lose the business of most of the community. But this is a college town… and maybe my perception of the scale of the harm is biased by that being here.)
Posted by: Paul Gowder | Sep 11, 2017 8:24:42 PM
I mean, “in the provision of. say, plumbing a secret . . .”
Posted by: Asher Steinberg | Sep 11, 2017 6:07:10 PM
I appreciate – well, thanks to you I do now – that burden tests have problems asnd that it would be nice to get away from them with an up-or-down rule about purpose. But I don’t think they can be gotten away from so simply. If Colorado’s law had the purpose of stigmatizing the message conveyed by sexual-orientation discrimination, I don’t see how that could make it invalid in all applications. Even supposing that all open discrimination in the provision of any service is expressive inasmuch as it conveys a discriminatory message, not all discrimination is open; often it’s pretextual. Someone who aims to keep their discrimination against gays in the provision of, say, plumbing isn’t expressing a thing, so unless you go pretty far down the road of valid-rule theory, I don’t see how he can have a First Amendment claim, whatever the statute’s purpose, and hence, can’t see how we can get away from deciding if the plaintiff’s conduct is expressive or not. Maybe purpose could be the sole criterion of constitutionality once we decided if we had a plaintiff engaged in protected speech or not, but I think we at least must decide that much. You say that even if Philips were a drudge it would raise a serious First Amendment problem to make him post a sign about gay marriage; yes, but that’s at least in part because he’d be speaking when he posted the sign and not solely because of the purpose of the law.
Posted by: Asher Steinberg | Sep 11, 2017 6:04:40 PM
I did not think anti-discrimination law where customers are not discriminated against for basic characteristics like race, sex or sexual orientation was only not “bloody silly” when “basic human needs” are involved. Or, if there was only one store in town that sells an item.
I personally don’t care about the beliefs of store owners when I buy stuff at my local bakery, perhaps because by law they cannot deny service for basic things like my race, sex or sexual orientation. And, I might want to buy stuff at a certain store for various reasons — including because the cake is well made, the price is right, it’s close by etc. — even if the person who sells it is a bigot.
Posted by: Joe | Sep 11, 2017 5:51:07 PM
(Note that the last comment changes if there’s a pervasive and stigmatizing refusal to sell cakes to same-sex weddings.)
Posted by: Paul Gowder | Sep 11, 2017 5:19:38 PM
I really want to agree with Rick here, but I can’t. As long as we refrain from silly mystifications about who or what constitutes “art” or whatever, it seems reasonable and quite workable to have an objective burden-based doctrine, i.e., a doctrine based on the idea that there are some social contexts in which compelling someone to carry a government message might also lead people to come to the unjustified conclusion that the someone endorses that message. After all, I take it that the point of constitutionalizing a prohibition against censorship is precisely that we do not (pace Ely) trust legislatures to balance expression against other stuff.
(That being said, it also seems bloody silly to me to think that requiring someone to serve a wedding cake in any way undermines their capacity to express their disapproval of same-sex marriage. AND at the same time, it also seems bloody silly to try to regulate away this kind of low-level baker bigotry as opposed to just letting the market and the disapproval of neighbors handle it. Bakers aren’t common carriers, we’re not talking about employment or access to basic human needs, it’s different from, e.g., the only pharmacist in town refusing to sell contraception, where there’s a serious injury. Why would you even want to buy a cake from a bigot baker? So I really disagree with everyone about everything here.)
Posted by: Paul Gowder | Sep 11, 2017 5:17:57 PM
I second the comment previously regarding interesting comments.
These discussions are interesting. Hope some of these comments don’t turn off people from leaving comments open.
Posted by: Joe | Sep 11, 2017 2:23:05 PM
Would you rather your kids drink vodka or raw milk? Would you rather your kids take up smoking or drinking raw milk? So if drinking and smoking are safe, then so is raw milk.
Posted by: Marlboro Camel | Sep 11, 2017 2:09:06 PM
“The Black Man is being asked to deliver a product to the site of the KKK Rally, presumably before the rally even begins. So why is the sale and delivery of a product a form of coerced “participation”?”
The Black Man has a right to stay as far away from KKK rallies as he desires. Just because The Black Man wants to get off of welfare by starting a business does not mean he has to go to KKK rallies.
Posted by: Been Carson | Sep 11, 2017 2:01:05 PM
I think being “artistic” matters somewhat but as Breyer noted in a recent case involving regulating credit transactions, a myriad of things has some sort of expressive content. The 1A is specifically concerned with expression, but that alone doesn’t trump in many cases. Things have to be looked at as a whole.
It is not a matter of “merely.” It is a matter of there some reason to be at least somewhat more careful in certain cases. But, here you have someone who said ‘no’ merely when a cake was asked for. The “expressive” content there was slight and as suggested any number of things might allegedly do that. A wedding cake has a certain symbolic character but so does the wedding itself and various other events. Supplying any of them might somehow be “expressive.”
So, that alone can’t seal the deal. Plus, you have a compelling state interest to address discrimination. OTOH, if it was some relatively trivial interest, which many laws might promote, I might be more wary. Since, yes, expression is important even when balancing other things.
Posted by: Joe | Sep 11, 2017 1:57:30 PM
If marijuana is safe, than so is raw milk. If medicinal marijuana is safe, then so is medicinal raw milk.
Posted by: raw milk is safer than marijuana | Sep 11, 2017 1:53:15 PM
People have a right to drink raw milk because it doesn’t lead to AIDS like gay sex does. That is, if AIDS doesn’t mean gay sex creates an imminent danger, than neither does drinking raw milk. People who drink raw milk live longer than AIDS patients.
Posted by: raw milk is safer than anal sex | Sep 11, 2017 1:51:16 PM
There’s a big difference between forcing a student to take a test (or wash their hands) and forcing them to say a school-organized prayer. The test is part of school, the prayer is not.
Not discriminating is an intrinsic part of being a business open to the public (i.e., the whole public), catering weddings or police retirement parties or KKK rallies (and therefore being associated with them) is not.
Posted by: Catering a KKK rally | Sep 11, 2017 1:45:14 PM
“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.”
Because freedom of speech is protected under the constitution while freedom of contract is not. Lochner (like Roe and Lawrence) can be overruled because it’s not an enumerated right; freedom of speech is.
Posted by: Lawrence Roes the Boat | Sep 11, 2017 1:40:40 PM
The cake is expressive for the same reason a “painting of Jackson Pollock, music of Arnold Schönberg, or Jabberwocky verse of Lewis Carroll” are expressive.
Would you see the case differently if instead of a baker it was a painter who was commissioned to paint a painting of the wedding? Or if it was a musician commissioned to compose a wedding march for the wedding?
Surely forcing someone to wash their hands or obey traffic laws is not the same as forcing someone to create art that will neither prevent or cure disease, right?
Posted by: Hurley Burley | Sep 11, 2017 1:35:15 PM
It’s not that forcing someone to put up a sign reminding people to wash their hands isn’t speech, it’s that its a necessary health regulation. Copyright laws punish speech, but it doesn’t mean that copyright is illegal. Copyright takes precedence over completely free speech to ensure that free speech doesn’t prevent markets.
Baking a cake for a wedding is not a necessary health regulation (or a copyright violation, or libel, or CP, or treason, or forced school prayer), anymore than forcing Michael Brown’s mother’s bakery to bake a cake for a police retirement party is a health regulation.
Posted by: Forced Art is not the same as a health regulation | Sep 11, 2017 1:26:16 PM
Side point for sure, but I think it’s a little disingenuous to claim a case is evidence that Reed v. Town of Gilbert has “caused” an area of First Amendment law to go “off the rails” when that case doesn’t cite Reed once.
Posted by: Enrique Armijo | Sep 11, 2017 11:36:34 AM