About this Blog Series

Welcome to the fourth in an 8-part series titled Frosting on the Cakes: Non-Discrimination Laws, First Amendment in the Mix at Supreme Court (Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111). We are joined by guest author Chad M. Eggspuehler to dig into the dynamics of this case, what you need to know to follow it through the process, and why it is so important. Chad is a member of the Tucker Ellis Appellate & Legal Issues Group. Before joining Tucker Ellis, he clerked for federal trial and appellate judges in New Jersey and Ohio, including the Honorable Deborah L. Cook, Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit. All views expressed here are those of the author. Chad can be reached at chad.eggspuehler@tuckerellis.com.

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Sheesh, there has been a whirlwind of activity in this case since the last entry, with Petitioners filing their merits brief at the end of August and more than three dozen amici briefs filed in the first week of September, including an unexpected amicus brief filed by the U.S. Department of Justice on behalf of the United States.  (Yet another sign that elections matter.)  In addition, in just the past few days, SCOTUSblog hosted an online symposium presenting a variety of thoughtful perspectives on the case that I commend to your attention.  (See Symposium entries here.)  While future blog entries will unpack these developments once all the briefs are in, I’d like to pick up where we left off—with the Supreme Court’s compelled-speech precedents.

As detailed in the last entry, Masterpiece asserts that Mr. Phillips’s cakes are protected expressive conduct, and that Colorado’s public accommodations law compels him to create expression that violates his sincerely held religious beliefs about marriage.  Put differently, Masterpiece argues that Colorado is attempting to suppress Mr. Phillips’s traditional religious and moral views that marriage exists only between a man and a woman by requiring that he take actions that affirm a contrary viewpoint.  Yet, there is a substantive difference between compelled expression, which the Supreme Court’s free speech precedents have viewed with skepticism, and requiring that vendors allow consumers equal access to the goods that they make available to the general public.

Barnette stressed the inherently symbolic nature of the flag salute—a principle recognized in numerous other First Amendment cases deeming flag displays protected speech, like Texas v. Johnson (1989) (flag burning), Spence v. Washington (1974) (improper display of flag), and Stromberg v. California (1931) (communist red flag display). The Barnette Court had “no doubt” that “the flag salute is a form of utterance,” and proceeded to list the myriad ways in which “[c]auses and nations, political parties, lodges, and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner.

At the heart of Masterpiece’s argument is West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), a World War II-era opinion that struck down a state law requiring that public school students salute and pledge allegiance to the American flag.  Understandably, Masterpiece and its supporters highlight several aspects of Justice Jackson’s elegant prose from Barnette.  The Court’s conclusion that “compelling the flag salute and pledge . . . invades the sphere of intellect and spirit which it is the purpose of the First Amendment” to protect.  Its insistence that the “Bill of Rights which guards the individual’s right to speak his own mind” precludes the state from “compel[ing] him to utter what is not in his mind.”  Its timeliness proclamation: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.”  Indeed, few First Amendment cases extol First Amendment virtues in such poignant terms—or at such a precarious point for democracies in world history—as Barnette did.  Nevertheless, the compulsory pledge and flag salute struck down in Barnette is worlds apart from the state instructing a vendor not to discriminate against a subset of customers.

Barnette stressed the inherently symbolic nature of the flag salute—a principle recognized in numerous other First Amendment cases deeming flag displays protected speech, like Texas v. Johnson (1989) (flag burning), Spence v. Washington (1974) (improper display of flag), and Stromberg v. California (1931) (communist red flag display).  The Barnette Court had “no doubt” that “the flag salute is a form of utterance,” and proceeded to list the myriad ways in which “[c]auses and nations, political parties, lodges, and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner.”  Whereas “[t]he State announces rank, function, and authority through crowns and maces, uniforms and black robes,” the Court explained, “the church speaks through the Cross, the Crucifix, the altar and shrine, and clerical raiment.”  West Virginia violated the First Amendment, the Court explained, because it “employ[ed] a flag as a symbol of adherence to government as presently organized” and “require[d] the individual to communicate by word and sign his acceptance of the political ideas it [represents].”  The Court likened the coerced participation in the flag-salute to historical subjugation events that were influential on our nation’s founders, such as the Romans’ persecution of early Christians and William Tell’s apple-shooting sentence for refusing to salute a bailiff.  The Court also noted that the mandatory flag salute, as initially proposed, drew comparisons to the Nazi-Fascist salute.

There is no reason to believe that the wedding cake’s inherent messaging changes—or that a state’s anti-discrimination public accommodations policy compels speech—just because same-sex marriage is a relatively new and divisive form of marriage in western cultures. Same-sex marriage is not a farce, notwithstanding the deeply held views of some. Families and friends gather in support of a couple who pledge to spend their lives together as a married couple, and a celebration ensues.

Unlike the pledge of allegiance and flag salute, which entail both (1) public gestures of respect or assent and (2) a ubiquitous symbol of the government, the non-discriminatory sale of generally available goods and services (here, a wedding cake) lacks an inherent, objectively discernable message.  As explained in the last entry, from an audience perspective, the sale of a customized wedding cake carries no inherent expression of the baker’s qualitative opinion (either pro or against) the wedding couple.  In most instances, the audience never sees the baker or knows who he or she is.

There is no reason to believe that the wedding cake’s inherent messaging changes—or that a state’s anti-discrimination public accommodations policy compels speech—just because same-sex marriage is a relatively new and divisive form of marriage in western cultures.  Same-sex marriage is not a farce, notwithstanding the deeply held views of some.  Families and friends gather in support of a couple who pledge to spend their lives together as a married couple, and a celebration ensues.  With some variation, flowers, formal attire, and gourmet foods likely will make an appearance.  Absent special circumstances—e.g., “F*ck the Draft” written on the tuxedo jacket, or the florist making an appearance at the wedding to give flowers as a gift—none of these wedding-related goods and services would be construed as the message of the craftsmen and vendors who sold them.  Cf. Cohen v. California, 403 U.S. 15 (1971) (deeming jacket message protected speech and overturning conviction).[1]

So too for any wedding cake; absent special circumstances, no audience would attribute a message to the baker.  Nor would any customer in the bakery assume the baker’s personal approval of potential customers’ forthcoming marriage simply because he discusses his wedding cake services with them.  The only reason that Mr. Phillips’s “message” reached an audience beyond the customers he turned away is that he detailed his message in a lawsuit.  Cf. Rumsfeld v. Forum for Academic & Institutional Rights, Inc. (FAIR), 547 U.S. 47, 66 (2006) (“The fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O’Brien.”).

Consider the situation where a tailor who rents customizable graduation robes refuses to rent to a student on the grounds of her opposition to racially integrated education.  Could she invoke First Amendment free speech protection for the denial of service solely by virtue of the symbolic nature of graduation robes—i.e., signifying that (a) a graduation has occurred, and (b) it should be celebrated?  No, because the widespread sale of goods and services in the marketplace—even symbolic ones that are customizable in the customer’s discretion—disassociates the vendor from any perceived message.

Masterpiece resists this conclusion, arguing that compelling Mr. Phillips to fulfill the order enlists his efforts in creating a symbol that conveys the message that (a) a wedding has occurred, and (b) it should be celebrated.  Yet, again, any such message would be attributed to the cake itself, the ceremony it appears at, and social norms—not the baker.  Consider the situation where a tailor who rents customizable graduation robes refuses to rent to a student on the grounds of her opposition to racially integrated education.  Could she invoke First Amendment free speech protection for the denial of service solely by virtue of the symbolic nature of graduation robes—i.e., signifying that (a) a graduation has occurred, and (b) it should be celebrated?  No, because the widespread sale of goods and services in the marketplace—even symbolic ones that are customizable in the customer’s discretion—disassociates the vendor from any perceived message.

No doubt, Mr. Phillips disapproves of same-sex marriage, as is his right.  It offends him that Colorado has ordered him to make his wedding cake services available to same-sex couples on the same terms as he does for opposite-sex couples.  He may voice these opinions in any manner he sees fit, including a symbolic pastry in his store opposing same-sex marriage.  (Which, in turn, might decrease the likelihood that same-sex couples would come to his store.)  But he cannot give voice to that conduct—the denial of an otherwise generally available service to same-sex couples.  Cf. FAIR, 547 U.S. at 65–66 (reaffirming principle that actor cannot convert conduct into protected speech simply by labeling it so).

In this regard, Masterpiece’s position is not so different from a dissenting taxpayer who seeks to voice his opposition to a government policy by refusing to pay taxes.  Take the Obamacare mandate that individuals purchase health insurance as a recent example of a disputed “tax.”  Does the fact that some people oppose the individual mandate make it compelled speech?  Can dissenters claim a First Amendment expressive-conduct right to opt out of the individual mandate because they believe their adherence (through purchasing health insurance or paying the tax) violates their conscience?

Other compelled-speech precedents cited by Masterpiece further distinguish the conduct at issue here.  In PG&E v. Public Utilities Commission of California (1985), a plurality of the Court vacated a utilities commission order that required a privately owned utility company to include messages it opposed in its billing envelopes.  In light of the company’s history of including an editorial newsletter with its bills, the inclusion of contrary viewpoints in the bill risked the appearance that the company endorsed those messages too.  The First Amendment sin addressed in PG&E involved the state agency’s intrusion on the company’s messaging that forced the choice of either responding to the contrary messages or ceasing its newsletter altogether.

In Wooley v. Maynard (1977), the Court found a First Amendment violation in New Hampshire’s requirement that the state motto “Live Free or Die” appear on all car license plates in the state.  After echoing the freedom of conscience and freedom to remain silent developed in Barnette and other cases, the Wooley Court declared that “New Hampshire’s statute in effect requires that appellees use their private property as a ‘mobile billboard’ for the State’s ideological message.”  430 U.S. 705, 715 (1977).  The driver’s forced participation in the public dissemination of the state’s preferred message was central to the Court’s holding.  Indeed, it framed the issues as: “whether the State may constitutionally require an individual to participate in the dissemination of an ideological message by displaying it on his private property in a manner and for the express purpose that it be observed and read by the public.”  Id. at 713.

Unlike the compelled envelope messaging in PG&E and the mandatory license plate message in Wooley, Colorado’s public accommodations law did not require Masterpiece to include messages with their cakes or cake bills.  While the equal-access principle underpinning Colorado’s law bears a passing resemblance to the “right to reply” law in Miami Herald Publishing Co., the analogy is tenuous at best.  Florida’s law required reply messaging in newspapers, compromising their editorial license.  The reply pieces would appear in the same newspaper, under the same masthead, at the newspaper’s cost.  Colorado’s law, by contrast, does not conscript newspapers—or any vendor’s objectively discernable messaging media—in the public dissemination of messages.

And in Miami Herald Publishing Co. v. Tornillo (1974)—a case involving the First Amendment freedom of press—the Court unanimously struck down a Florida “right to reply” law that guaranteed political candidates an opportunity to respond to critical newspaper articles in the publications that printed them.  The law crossed the First Amendment line by “[c]ompelling editors or publishers to publish that which reason tells them should not be published.”  418 U.S. 241, 256 (1974) (citation and internal quotation marks omitted).  Further, the right of reply operated as a penalty for certain forms of editorial content; critical content resulted in the publication paying to publish a reply piece and losing the attendant page space.

Unlike the compelled envelope messaging in PG&E and the mandatory license plate message in Wooley, Colorado’s public accommodations law did not require Masterpiece to include messages with their cakes or cake bills.  While the equal-access principle underpinning Colorado’s law bears a passing resemblance to the “right to reply” law in Miami Herald Publishing Co., the analogy is tenuous at best.  Florida’s law required reply messaging in newspapers, compromising their editorial license.  The reply pieces would appear in the same newspaper, under the same masthead, at the newspaper’s cost.  Colorado’s law, by contrast, does not conscript newspapers—or any vendor’s objectively discernable messaging media—in the public dissemination of messages.  It merely requires the nondiscriminatory sale of goods and services in the marketplace.  Nothing in Miami Herald Publishing Co. suggests that the Court would have found fault with a law requiring the nondiscriminatory sale of newspapers to all paying customers in the marketplace.          

In sum, neither Barnette nor its progeny support Masterpiece’s position here.  Barnette vindicated the freedom of conscience principles at the heart of the First Amendment when America and the world needed it most.  It distinguished the United States from its fascist enemies by assuring the right to abstain from public displays of state messages.  It declared to the world that America’s strength derived from its citizens’ right to non-conformity.  It says nothing about the discriminatory sale of goods in the marketplace.[2]

[1] Even with the jacket hypothetical, I’m not sure a reasonable viewer would construe that as the tailor’s message, as opposed to the person wearing the jacket.

[2] Masterpiece advances additional compelled-speech arguments that overlap with cases addressing the First Amendment’s freedom of association.  I will address those issues in a future post.

Chad M. Eggspuehler is a member of the Tucker Ellis Appellate & Legal Issues Group. Before joining Tucker Ellis, he clerked for federal trial and appellate judges in New Jersey and Ohio, including the Honorable Deborah L. Cook, Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit. All views expressed here are those of the author. Chad can be reached at chad.eggspuehler@tuckerellis.com.