My Cato Institute colleagues (Sept. 6) and the U.S. Department of Justice (Sept. 7) have both weighed in with amicus briefs in the Supreme Court’s fall-term case of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, supporting the principle that the First Amendment does not permit Colorado public accommodations law to force independent baker Jack Phillips to create a cake intended for a same-sex wedding in which he does not wish to participate.
Cato’s brief emphasizes the expressive significance of custom cake baking, which involves the creation of a unique work of art with symbolic and emotional elements (more from Ilya Shapiro and David McDonald).
The Department of Justice brief advances a similar argument and also argues that creative expression aside, the law must not force “participation in an expressive event” under First Amendment precedents such as Barnette v. West Virginia Board of Education (public school students may not be compelled to take part in Pledge of Allegiance, flag salutes, or similar ceremonies), absent a more compelling state interest than Colorado has shown here.
Both briefs distinguish custom cake making from other wedding services. Cato notes that some services (wedding photography, custom floral design) share elements of creative expression with custom cake baking, while many other services do not. DoJ says there is no First Amendment problem applying public accommodation law to hall or limo rental or to the sale of off-the-shelf cakes. Where a product is not custom made for a particular client or event, the law is dealing with a sale of goods, not conscripting an expressive service.
Neither Cato’s nor DoJ’s brief is grounded in a free exercise of religion argument, but would apply to refusals to deal whether grounded in religious belief or not. Earlier here and here. More: Erica Goldberg.
6 Comments
“…absent a more compelling state interest than Colorado has shown here.”
Colorado has a compelling interest in punishing wrongthink. Will SCOTUS agree? Stay tuned.
The DOJ brief differed from Cato’s when only the former argued, “A State […] may justify infring[ing] on First Amendment freedoms” when an anti-discrimination law aimed at racial discrimination eliminates conduct which “violates deeply and widely accepted views of elementary justice”. It would thus appear, the DOJ would disfavor artistic expression of a viewpoint opposed to interracial marriage. That doesn’t strike me as a sound First Amendment position.
Which this cake didn’t necessarily. The business webpage directed the public to a gallery of wedding cake pictures and said:
“Click the cake image and if you see something you like, just tell Jack.”
The cake selection process was as potentially ‘artistic’ as picking out the style, color and accessory package of a new care.
Commercial speech like this isn’t protected if the customer’s want what was offered for sale. If one can find a cake designnto their liking so can the next order the same one without civil rights discrimination.
And other people than Jack decorated cakes, if he didn’t want to do it someone else at Masterpiece Cakeshop could have.
Phillips was listed in the Commission’s ruling as the business owner, not the person who must decorate this cake. He could take the day off – it is the business with the obligation to obey civil rights laws, not any particular baker’s. The question before the court isn’t even the one the commission decided.
“The cake selection process was as potentially ‘artistic’ as picking out the style, color and accessory package of a new care. ”
In this specific case, the plaintiffs, according to their own complaint were looking for a full custom designed wedding cake, In other words, they wanted a one off custom art piece.
Actually the uncontested statement of facts says the details of the design were never discussed so it was impossible to know that. We only know what another bakery eventually gave them for free, very standard box shaped cake that very likely was similar to something in Jack’s gallery
The fact that the details of the design were not discussed, but that does not prove that they were not looking for a custom design. In fact it supports that they were looking for a custom design.