American civil rights law dodged a bullet on Monday when the Supreme Court issued a compromise in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Though the court ruled narrowly for the anti-gay baker on the grounds that the Colorado commission expressed impermissible hostility toward religion, Justice Anthony Kennedy’s opinion for the court affirmed the constitutionality of non-discrimination statutes—and specifically their application to LGBTQ people. This decision undermines anti-gay activists’ effort to nullify such non-discrimination measures on First Amendment grounds, with a majority of justices indicating their belief that our contemporary civil rights regime passes constitutional muster. But two justices disagreed: In a disgruntled and ominous concurring opinion, Justices Clarence Thomas and Neil Gorsuch signaled their desire to tear down this regime at the next opportunity, subverting basic nondiscrimination principles in favor of unbridled bigotry in the marketplace.
Kennedy decided Masterpiece Cakeshop solely on free exercise grounds. But Alliance Defending Freedom—the anti-LGBTQ law firm that represented the store—litigated it chiefly as a free expression case. ADF argued that Jack Phillips, the store’s anti-gay baker, had a free speech right not to bake a cake for a same-sex wedding because baking a cake for profit constitutes expression protected by the First Amendment. By ordering Phillips to bake cakes for gay weddings, ADF asserted, Colorado had unconstitutionally compelled him to express his support for same-sex marriage.
This claim formed the centerpiece of the case for an obvious reason: It would, if adopted, undercut vast swaths of nondiscrimination law, particularly those protecting LGBTQ people. Businesses could refuse to provide a wide range of goods and services—flowers, photography, transportation, decoration, music—to same-sex couples by recasting them as “expression.” From the Trump administration’s perspective, in fact, that was the point of the case: Trump’s Justice Department filed a cynical amicus brief urging the court to rule that states may not guarantee gay people equal treatment under the law. But because Kennedy found evidence of anti-religious animus, he was able to avoid free speech question, instead ruling that the Colorado commission had violated the free exercise clause.
In a separate opinion joined only by Gorsuch, Thomas stepped in to address free expression—buying the ADF’s argument hook, line, and sinker. Phillips’ baking, he explained, qualifies as constitutionally protected expression for three reasons. First, he wrote that Phillips’ work “is expressive” because he “considers himself an artist.” (To prove this claim, he cites Phillips’ logo, “an artist’s paint palette with a paintbrush and baker’s whisk,” and a picture behind the counter “that depicts him as an artist painting on a canvas.”) Second, Thomas asserted that “Phillips is an active participant in the wedding celebration” because he consults with the couple before baking their cake. Third, the justice proclaimed that wedding cakes “communicate” the message that “the couple should be celebrated”—and a wedding cake for a gay couple must thus “express approval of same-sex marriage.”
These leaps of logic are each highly questionable and raise a number of thorny questions. Do hairdressers also get to turn away gay clients if they consider themselves artists? What about a jeweler who designs rings? Can a vendor who supplies tables and chairs refuse to serve same-sex couples because they will be an “active participant in the wedding celebration”? What about a catering company? Can other foodstuffs communicate a message, too? Phillips, for instance, once refused to bake cupcakes for a lesbian couple’s commitment celebration. Do cupcakes “express approval of same-sex marriage”? What if they’re terrible cupcakes? Would that express disapproval of gays?
Under current precedent, all these questions can be answered at once: A business may not use the First Amendment to discriminate against certain clientele. That is because, as Justice Sandra Day O’Connor famously wrote in 1984, “the Constitution does not guarantee [businesses] a right to choose” their customers. A unanimous Supreme Court decision expanded on this rule in 2006’s Rumsfeld v. FAIR, which explained that nondiscrimination laws are constitutionally permissible because they primarily regulate conduct, and create only “incidental” burdens on speech. Congress, the court noted, “can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct.”
Thomas now appears to disagree. Under his reasoning in Masterpiece Cakeshop, measures barring “White Applicants Only” are actually a restriction on speech, not just conduct, and must be evaluated like any other form of government censorship. That means nondiscrimination laws that happen to burden expression must be subject to strict scrutiny under the First Amendment.
Here is where Thomas’ opinion gets truly bizarre. To survive strict scrutiny, a law must serve a compelling government interest. You might expect the eradication of discrimination in commerce to qualify as a state interest of the highest order, particularly because the Supreme Court has also held precisely that. The Colorado Court of Appeals leaned on this rationale, explaining that the state may bar discrimination in order to safeguard minorities against public “humiliation, frustration, and embarrassment.” Thomas, however, called these justifications “completely foreign to our free speech jurisprudence,” declaring that they “would allow the government to stamp out virtually any speech at will.” He noted that the court had few “concerns about ‘dignity’ and ‘stigma’ ” when it protected cross-burning and violently racist advocacy.
This comparison is entirely specious. The Supreme Court has only protected racist speech among private groups; it has consistently swatted down efforts to protect racist speech uttered in the workplace or marketplace. And it draws this distinction for the precise reason that Thomas shrugs off: The government has an overwhelming interest in stamping out discrimination against minority customers and employees—an interest that is absent when the Ku Klux Klan assembles on its own time and property.
By collapsing that distinction, Thomas calls into question the legality of virtually every nondiscrimination law on the books. These measures, after all, routinely suppress expression: They bar employers and employees from expressing bigotry and often compel them to promote an ideology, like workplace equality, with which they may vigorously disagree. Under Thomas’ rule, these statutes would be constitutionally invalid. An anti-Semitic employee could spew hateful insults at Jewish customers. A sexist boss could make misogynistic comments in the office. And, yes, a racist manager could place a “White Applicants Only” sign in the window. The First Amendment would shield their speech from government sanction just as, to Thomas, it secures Jack Phillips’ right to turn away same-sex couples.
Notably, only Gorsuch joined this radical opinion. This suggests that a majority of the court has no appetite to strike at the heart of modern civil rights law. It remains disconcerting, though, that a vocal minority of the court wants to obliterate the measures that have allowed an unprecedented number of minorities to flourish in the American workplace. Kennedy’s majority opinion leaves all these issues for another day. But if Thomas’ view has gained a foothold when that day arrives, a legal regime rooted in equal dignity for workers and employees will suddenly come crashing down.
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