The ongoing saga of Masterpiece Cakeshop took another twist last week when a federal judge refused to dismiss a new lawsuit brought by a bakery owner who refuses to make wedding cakes for same-sex couples. Jack Phillips, the baker in question, has been defending himself against claims brought by the state that he violated Colorado’s nondiscrimination laws. Given the newly entrenched conservative majority in place at the Supreme Court, however, Colorado should dismiss its claims against Phillips. The state needs to recognize that this litigation is not the right vehicle to use to determine the proper balance between free-speech values and the fight against sexual-orientation discrimination.
Phillips is a self-defined “cake artist” who refused to make a wedding cake for a same-sex ceremony as well as a blue and pink cake to celebrate a transgender person’s transition from male to female. Even though Phillips’ intolerance and bigotry are condemnable, and the legal issues are close, Colorado should announce that vendors cannot be forced under state law to create expressive items and that custom wedding and birthday cakes are such items. (Phillips has said gays and lesbians as well as transgender folks may buy pre-made items in his store.)
The first stage of this litigation—which Phillips lost—went through the state administrative and judicial processes before the Supreme Court sent the case back to Colorado based on allegedly anti-religious statements and decisions made by several Colorado officials. The court did not reach the merits of Phillips’ speech and religion claims. The decision was narrow and does not affect similar controversies in other states.
After the Colorado Civil Rights Commission continued its proceedings at the state level, Phillips filed a new federal lawsuit seeking an injunction against the commission and damages from a few members of the Colorado government. In a complex procedural ruling issued last week involving difficult jurisdictional issues, the federal trial judge dismissed the clams for money damages but refused to dismiss the claims for a federal injunction against the commission. Presumably, there will now be a costly and nationally watched trial or evidentiary hearing on Phillips’ allegations that his free-speech and freedom of religion rights have been violated. It is in no one’s interest for such a trial to proceed.
Phillips views his custom cakes as expressions of his creativity. He runs his small business consistently with his religious beliefs. He doesn’t open on Sundays, he won’t make Halloween goods, and he has prayer meetings in his shop. When Colorado made him choose between making wedding cakes for same-sex couples or not making wedding cakes at all, he chose the latter and lost huge amounts of income. His sincerity is not in doubt, even if his judgment and compassion are.
Make no mistake, the state will lose this case if it reaches the United States Supreme Court again, which will make matters much worse for gays, lesbians, and other minorities. In its ruling last term, Justices Samuel Alito, Clarence Thomas, and Neil Gorsuch made it clear they wanted to rule for Phillips on the merits, and Brett Kavanaugh is likely to agree. That leaves the case in the hands of Chief Justice John Roberts, whose dissent in the same-sex marriage decision was arguably the angriest of his career. Colorado would be foolish to roll the dice on Roberts siding with gay and transgender rights over alleged freedom of speech and religion claims.
Moreover, many legal scholars believe that state nondiscrimination laws cannot, or at least should not, be used by the government to coerce artists to express messages they disagree with. That rule can be easily cabined. Most retailers don’t sell expressive items and would not be allowed to opt out of nondiscrimination laws. People who sell tires, ovens, and tea bags do not express themselves in a First Amendment sense. Neither do Walmart or Target. Other professions clearly are expressive, such as wedding singers, people who make custom videos, etc. Reasonable people can disagree where a “cake artist” fits into this equation, but this notoriously gray area shouldn’t be the basis for what might eventually be a broad and important ruling by the Supreme Court.
Because Colorado does not have its own version of the Religious Freedom Restoration Act protecting religious exercise from generally applicable laws, and because the court has held the First Amendment does not require exemptions from such laws, it is highly likely Phillips will not prevail on his freedom of religion claims. However, his free-speech cause of action, as discussed above, is much stronger. Not only will Justice Roberts, one of the most free-speech-friendly justices in American history, almost certainly accept that argument—a holding that a baker designing custom cakes expressing the baker’s creativity is engaging in First Amendment activity is substantially stronger than many First Amendment arguments the court has accepted in the recent past (such as last term’s horrific decision that states cannot force public workers to pay partial union dues because doing so violates their right to free speech).
Free speech can be limited or even prohibited if the government has a compelling interest to do so and uses the most narrowly tailored means to further that interest. But this test is quite difficult to meet. No doubt the justices will find Colorado has a compelling interest in fighting discrimination, but the problem is that gays, lesbians, and transgender folks have access to hundreds of bakeries in Colorado more than willing to serve them. That reality distinguishes this case, in the eyes of some, from racial segregation in the South in the 1960s, when many black Americans could not travel because there were few if any restaurants or hotels that would serve them. Additionally, Phillips is willing to provide anyone nonexpressive, pre-made goods.
To be clear, Phillips’ decision not to make the cakes in question is reprehensible. As I’ve written before, discrimination based on faith is still discrimination. It is decidedly unchristian for Phillips to turn away these customers. Nevertheless, he is destined to win this lawsuit eventually. Colorado should cut its losses and try to reach a settlement with Phillips where each side goes its separate ways. The battle between freedom of speech and the rights of minority groups should be fought on a different day and on a different battlefield. Litigation, like politics, is often the art of the possible.
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