Dale Carpenter and Eugene Volokh
Law Professors Dale Carpenter and Eugene Volokh favor nondiscrimination

Dale Carpenter has a named professorship at SMU Dedman School of Law. Eugene Volokh has a named professorship at UCLA school of law. Both are considered to be experts in constitutional law and they have filed an amicus brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission. Their position is that there is no free speech right to deny a cake to a gay couple.

Of the two I follow Volokh more closely and occasionally trade email with him. Eugene courteously provided me with a copy of the brief. Suffice it to say, while Eugene supported marriage equality I am quite pleasantly surprised that he is not making a libertarian argument in favor of the baker.

Alliance Defending Freedom has been agitating and fund raising on the premise that this case is about religious liberty. However, precedent does not favor a refusal to bake the damned cake as a conscientious objection1. The core of ADF’s argument before the Supreme Court seems to be that Phillips is an artiste. Requiring him to make art is compelled speech which is a First Amendment violation.

Carpenter and Volokh explain that they do support a prohibition of compelled speech:

The government may not compel people to speak.
Likewise, the government may not compel people to
create speech or other protected expression. For this
reason, the government cannot compel photographers,
videographers, graphic designers, printers, painters,
or singers to record, celebrate, or promote events they
disapprove of, including same-sex weddings.

That is part of the argument of Cato Institute. Cato, however, says that compelled speech applies to Jack Phillips. Carpenter and Volokh disagree.

The Court might have to define art. On the other hand, the state can determine what is, and what is not, a public accommodation. My (essentially non-legal) argument is that even if you consider the custom smearing of butter-cream on sponge cake to be artistry, it is being done within the confines of a public accommodation and subject to applicable nondiscrimination laws. This takes care of the guy who claims that his martinis are exquisite or the chef deciding where his Amaretto souffle can be consumed.

Update: By email Professor Volokh reminds me that by the time a case like this gets to the Supreme Court, the issue of whether or not the business is a public accommodation has been resolved. Thinking it through a bit more, that might be the petitioner’s argument if we had lost in the lower courts. In other words, had Masterpiece prevailed and the Colorado Civil Rights Commission were seeking to overturn the decision they might raise that as an argument. The other way around and at this juncture it is just not in play.

Carpenter and Volokh reach the same conclusion regarding a chef but for different reasons:

A chef, however brilliant, cannot claim a Free
Speech Clause right not to serve certain people at his
restaurant, even if his dishes look stunning. The same
is true for bakers, even ones who create beautiful
cakes for use at weddings. It is generally constitutional—whether or not wise or just—for the law to
compel behavior, and only a small subset of such compulsions violates the First Amendment.

There is also an issue of intent. Is the baker intending to convey a message beyond his commercial interests to promote his competence.

…baking a wedding cake by itself does not show
an intent to convey a particularized message that
would likely be understood by those who view it. The
main question here is rather whether the second condition regarding the general expressiveness of the medium as a whole is satisfied.

Supporters of the baker cannot cite cases asserting that cake baking is expressive as art:

… cake-making—even cake-making for ceremonial occasions (such as weddings and birthdays)—
lacks any such longstanding legal recognition as an expressive medium. Indeed, petitioners and their amici
have cited no decisions from any court offering such
recognition. Given the long history of wedding cakes,
the absence of case law protecting such cake-making
cannot be chalked up to novelty (unlike, say, a paucity
of cases dealing with website design). Instead, the absence of any case law protecting the expressiveness of
cake baking suggests that it has not been regarded in
our constitutional tradition as a medium of expression. That makes cake baking distinct from long-recognized mediums of expression such as writing, singing, or photography.

The above seeks to define what is art. They go on to explain why, for example, hairstyling, in this context, is not art. I prefer my simpler assertion that an activity that takes place in a place of public accommodation is subject to laws affecting public accommodations. My argument would have supported the wedding photographer in Elane Photography v. Willocks which the Court chose not to hear. Volokh and Dale also supported the photographer. The lower courts asserted that Elane was a public accommodation, deferring to the state.

ADF could not challenge on that basis because it would have imperiled the interests of other potential clients. Interestingly, however, they won a pre-enforcement challenge recently in a state court on that very basis due to the fact that the business was without a physical presence. There is no way in hell that they can make a similar argument about Phillips.

They make an important point. It is the same identical problem that Barronelle Stutzman (the Washington florist) has:

This is not a case involving cake customization, as
the uncontested facts show. In 2012, Respondent
Craig and Mullins walked into Masterpiece Cakeshop
and were looking through a photo album of owner Jack
Phillips’s custom-designed cakes. Phillips sat down to
greet them at a consultation table. According to Phillips’s own account, “the men said they wanted a wed-
ding cake for ‘our wedding.’” Phillips replied that he
does not “create wedding cakes for same-sex weddings.” Phillips then added, “I’ll make your birthday
cakes, shower cakes, sell you cookies and brownies, I
just don’t make cakes for same-sex weddings.

Suppose, for the moment, that Phillips and the couple discussed the design of the cake whereby the couple wanted rainbow frosting, could Phillips then claim that he would not make a cake with a gay design? Would I have to bake an anti-Semitic cake for Westoboro Baptist Church? By the way, I would make that cake. I might inform them that I am donating the profits to ADL but, if it is my enterprise, I’ll bake the cake. It is a business. Masterpiece Cakeshop is also a for-profit business.

Those are better questions but we never get there because Phillips is trying to express his disapproval. Again, Stutzman did the exact same thing. She did not care about what floral arrangements the couple wanted. On the surface, she did not want her flowers displayed at a same-sex wedding. Ultimately, though, she did not want to do anything that conveys approval of homosexuality. Both of these people are ultimately bigots and, frankly, not terribly smart.

What I like best about this brief is their approach to the bullshit of “participation.” It drives me to distraction every time ADF claims that the baker was forced to participate or even celebrate the same-sex wedding:

Compelling cake makers to
make cakes that will be used in another’s speech miles
away is, if anything, even more distant from true compelled participation in the speech.
Nor is Phillips’ act of delivering a cake to a wedding or wedding celebration participation in the wedding. Phillips sometimes chooses to stay for a wedding
ceremony, but it is undisputed that nothing about Phillips’ creation of wedding cakes necessitates his attendance at, much less his active participation in, the wedding.

They also make an argument seemingly directed at Gorsuch. Gorsuch’s Court of Appeals ruling in Hobby Lobby v. Burwell gave voice to the notion of complicity. This is the belief that adhering to a law makes a person complicit in the outcome:

Complicity claims might justify protection
under a Religious Freedom Restoration Act,
but not under the First Amendment

To be sure, when it comes to claims of religious exemption—for instance under state or federal Religious
Freedom Restoration Acts—an objector may be able to
show a “substantial burden” if he sincerely believes
that certain compelled action will make him complicit
in another’s sin, regardless of whether the secular legal system would view his conduct as sufficient participation.

This is the first brief that I have seen in favor of Colorado Civil Rights Commission. We are going to see many more. They are going to make some very interesting arguments. Some will be quite novel (as in this brief’s approach to complicity). Ultimately, they are going to be more intellectually honest than the arguments made by those who support the idea that Phillips can lawfully discriminate regardless of state law.

—— —

1 Hobby Lobby was an interpretation of the Religious Freedom Restoration Act. RFRA does not apply to the states. That leaves in place Reynolds v. United States (1879). The Court ruled that regulating conduct is not an impermissible regulation of religious belief. More recently, Employment Division v. Smith (1990) established that there are not religious exemptions to otherwise applicable laws — at least none according to Justice Scalia who wrote the opinion for the majority.

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By David Cary Hart

Retired CEO. Formerly a W.E. Deming-trained quality-management consultant. Now just a cranky Jewish queer. Gay cis. He/Him/His.