Part 6. Get Out the Measuring Cups: Following the Recipe & Sifting Through This Week’s Argument

About this Blog Series

Welcome to the sixth 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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After much ado, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111, will be heard by the Supreme Court tomorrow.  Transcripts and audio recordings of the argument should be available this week on the Supreme Court’s website.  For interested Court observers trying to predict the outcome based on the Justices’ questions—often a fool’s errand—here are some things to look for during the argument.


How Does the Court Respond to the Symbolic Speech Arguments? Will Objective or Subjective Standards Prevail?

First and foremost, the Court must decide whether the preparation of wedding cakes—absent specific messaging or expressive customization—is protected symbolic speech.  Petitioners claim that Mr. Phillips’s cakes are art and thus entitled to artistic discretion that would enable him to refuse specific orders (e.g., Halloween cakes).

To be sure, wedding cakes have some expressive value, in that they often share similar design elements and, when served at a wedding reception, they signify that a wedding has occurred.  But not so much more than other cakes—for instance, birthday cakes, baby shower cakes, and graduation cakes.  For purposes of determining whether the act of preparing a wedding cake is categorically entitled to First Amendment protection, the question remains: do wedding cakes reflect a message from the baker?  Does that question even matter?

Much will depend on whether the Court follows the traditional Spence-Johnson test for determining whether conduct “possesses sufficient elements” to trigger First Amendment protection.  (See Entry 3.)  That test requires (1) an intent to convey a particularized message, and (2) a strong likelihood that the message would be understood by those who viewed it.  Petitioners have argued that the Supreme Court abandoned the “particularized message” requirement, citing Hurley, but what about the second prong?  If the objective audience-impact element remains, Petitioners may face an uphill battle in establishing First Amendment protection.  After all, what wedding guest would view the wedding cake as the baker’s personal endorsement of the wedding as opposed to a commercial transaction?  Or, for that matter, synonymous with the demonstrative conduct deemed protected in Spence (flag alteration), Johnson (flag burning), Hurley (parade marching), and Tinker (wearing black armbands)?

Doctrine aside, see how the Court reacts to the idea that Colorado’s antidiscrimination law is forcing Mr. Phillips to create expression he opposes.  In such circumstances, does the Court see the cake as forced expression or a good sold in the marketplace?

The Supreme Court’s 2006 decision in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR) reiterated the O’Brien principle that an actor cannot simply label conduct speech in order to invoke First Amendment protections. The FAIR Court explained that First Amendment protection extends “only to conduct that is inherently expressive.”  547 U.S. 47, 65-66 (2006).  In light of these principles, how much deference will the Court give to Mr. Phillips’s subjective intent for his cakes, as opposed to the objective standard of likely audience impact?

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Ditto, Compelled Speech Arguments?

On a related note, how does the Court respond to Petitioner’s argument that Colorado’s public accommodations law compels Mr. Phillips to endorse a message (support of same-sex marriage) that he opposes?  Does a law requiring that vendors make their goods available to LGBT citizens on the same terms that the vendor sells to other persons constitute compelled speech?  (See Entry 4.)  And if so, what would that message be?  Compare to the “Live Free or Die” license plate (Wooley), the newspaper right-to-reply law (Miami Herald Publishing Co.), and the mandatory flag salute (Barnette).

If not compelled speech, will the Court construe Petitioners’ arguments as akin to a free-association claim?  (See Entry 5)  Does the equal-service requirement effectively require Mr. Phillips to participate in—and support—a same-sex wedding?

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How Much Attention Will the Court Give to the Hybrid Religious Liberty Claim? Does the Absence of RFRA matter?

As previously detailed (see Entry 5), the Free Exercise claim, standing on its own, likely fails under Employment Division v. Smith, 494 U.S. 872 (1990) because Colorado’s public accommodations law is a generally applicable law that does not target a specific religious activity.  Changes in Court personnel are not likely to impact that precedent: Smith was written by the late conservative stalwart Justice Scalia and joined by current swing-Justice Anthony Kennedy.

Yet, Smith left the door open for hybrid speech/free exercise claims.  Petitioners advance that theory here.  If the Court appears inclined to credit Petitioner’s free-speech argument, look for signs that the Court might give those claims greater weight because of the related free-exercise claim.

Also consider the impact of religious freedom restoration acts (RFRAs)—or more precisely, the absence of a RFRA provision protecting the bakery’s denial of service here.  Congress passed the federal RFRA after Smith to provide greater protections for religious liberties burdened by generally applicable laws.  That was the statute under which the Supreme Court decided the healthcare contraception mandate case, and if it applied here, the bakery likely would have had the right to refuse Respondents’ cake order.  A number of states have debated and/or adopted RFRAs similar to the federal RFRA, while providing little to no protection for LGBT individuals in the marketplace.  But Colorado has taken a different path.

Will the Court see this dispute as a matter for legislative resolution by each state or a constitutionally protected matter of religious liberty?

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Means-Ends Questions, Heightened Scrutiny, and the State’s Justification for its Public Accommodations Law. The Line-Drawing Problem.

If the Court asks a number of questions concerning Colorado’s justification for the law (compelling or important interest, narrow tailoring, least restrictive means), that may suggest that the Court believes that the preparation of wedding cakes is entitled to First Amendment protection.  But that does not mean that Petitioners’ First Amendment claim will prevail.

In Hurley, despite blocking Massachusetts’s meddling with the parade’s membership, the Court unanimously recognized that antidiscrimination public accommodations laws—including those that protect LGBT citizens—“are well within the State’s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination.”.  Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 572 (1995).  In light of this, will the Court find that Colorado has a compelling governmental interest in protecting LGBT citizens from discrimination in the marketplace?  Or will it discount the state’s interest, as Petitioners suggest, because same-sex marriage is now supported by a majority of Americans?  How much proof will the Court require for the state to establish a sufficient governmental interest?

Beyond the state’s interest, how narrowly must the state draw its remedy?  If the Court suggests that the state should allow exceptions for conscientious objectors, that may indicate concerns that the public accommodations law is not narrowly tailored to the harm it seeks to eliminate. Then the question becomes, what sorts of exceptions to generally applicable antidiscrimination laws does the Court expect the state to make?

Should the state exempt only vendors of wedding related goods?  Does the same First Amendment carve-out apply to vendors with religious objections to interracial and/or interfaith couples?  Would the same compelled-speech/religious-liberty theory permit employers to opt out of generally applicable laws prohibiting employers from firing or otherwise discriminating against LGBT persons and people belonging to other protected classes?

Take note of how the Court broaches and navigates these topics.

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The Ripple Effect.

If the Court intends to rule for Petitioners, the limiting principles for any such ruling would determine whether the First Amendment would become a substantial obstacle for LGBT rights and other civil rights laws.  SAGE and the American Society of Aging (ASA) filed a compelling amicus brief addressing how a First Amendment right for vendors to refuse LGBT customers would have a detrimental impact on older LGBT adults seeking long-term care and funeral-related services.  (See SAGE and ASA amicus brief here.)  Would such a religious exemption enable doctors to withhold urgent medical care?  Others have argued that granting a religious exemption here would erode civil rights protections for all sorts of protected classes.  (See NAACP amicus brief here.)

Limiting principles will almost certainly come up during the argument.  See which Justices are asking these questions and how the parties respond.

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What Does the Court Make of the Limited Record? Bad Facts?

Does the Court stick to the facts agreed upon by the parties and decided by the Colorado administrative and judicial proceedings, or does it engage in flexible hypotheticals about slightly different customer interactions?  Remember, Mr. Phillips denied the couple’s request for a wedding cake without any conversation of its design or messaging.  Petitioners and supporting amici stress that this case involves customized cake artistry, but the parties never made it that far.  (See Entry 2.)  If all hand-crafted goods are categorically pieces of art that entitle their craftsmen to a constitutional right to reject customers, then that would be a substantial First Amendment exception to antidiscrimination laws designed to ensure the equal access to goods in the marketplace.

Will the Court request additional fact-finding into the parties’ interaction and Mr. Phillips’s motivations, as some have suggested?  Or will it consider some of the more colorful facts that were not part of the administrative record—i.e., the rainbow-colored filling in the cake given to the couple after the incident, or the bakery’s alleged refusal to sell cupcakes to another same-sex couple and alleged willingness to make a wedding cake for dogs?

What about the other cake cases involving orders for a Bible-shaped cake featuring biblical passages and messages condemning homosexuality?  The Colorado Civil Rights Commission found no violation by bakeries’ rejections of these orders, and Petitioners charge hypocrisy.  If the Court believes that the Commission’s disparate treatment of these cases demonstrates viewpoint discrimination, then the state’s position could be in trouble.

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Optics: Which Narrative Controls the Argument?

For all the complexity of legal doctrines, sometimes the case can be as simple as the controlling narrative.  Does the Court primarily see this case as a speech case or a religious liberty case?  Right of conscientious objection or equal access to the marketplace?  Based on the Justices questions, if you had to write the newspaper headline for this case, what would it be?

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States’ Rights vs. Religious Liberty, and What About Originalism?

Oddly, conservatives and liberals have swapped scripts in this case.  Many conservatives are asking for the Court to extend a federal constitutional protection to a new form of symbolic speech: the refusal to sell wedding cakes to same-sex couples.  Absent from this request is any discussion of how the original meaning of the First Amendment supports Petitioners’ view.  Liberals and other conservatives, however, have assumed the mantle of states’ rights.  If Petitioners do not like the law, persuade the legislature to change it.  Funny, how much things have changed a mere two years after Obergefell.

Though this case does not raise these competing constitutional values in as stark of a manner as Obergefell did, listen to see if the attorneys or the Court has any concerns along these lines.

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Impact of the United States’ Amicus Brief.

The Department of Justice (DOJ) surprised many when it filed an amicus brief for the United States on behalf of Petitioners, because few expected the U.S. government to assert an cognizable interest in the application of a state’s antidiscrimination public accommodations law.  The amicus for the United States, however, asserts a vague “substantial interest in the preservation of constitutional rights of free expression” and the “application of such rights in the context of” public accommodations laws, generally, including Title II of the Civil Rights Act of 1964 and Title III of the Americans with Disabilities Act (ADA).  It would seem that the Department of Justice is keen to show the Court that the First Amendment poses no obstacle to the public accommodations laws passed during the Civil Rights era, while at the same time reminding the Court that federal public accommodations laws offer no special protections for LGBT citizens.  (See United States amicus brief here at 12 n.2, 22–23.)  This approach aligns with arguments the administration has taken in other cases examining whether federal laws provide protections to LGBT persons.

The government is trying to assure the Court that ruling for Petitioners will not gut longstanding civil rights protections.  But in doing so, it acknowledges the difficult line-drawing that such a ruling would create.  For instance, the government recognizes that jewelers should not be compelled to sell wedding bands to same-sex couples.  Id. at 26–27.  The government, like others, presumes that this case arose from a demand for a custom wedding cake.

Perhaps most disappointing, the United States argues that Colorado does not have a compelling interest in providing public accommodations protections for LGBT individuals by distinguishing discrimination against same-sex couples from racial discrimination.  In doing so, the government quotes extensively from Obergefell’s passages acknowledging that people with traditional values have good faith reasons for objecting to same-sex marriage.  That may be so, but what do individuals’ good-faith beliefs about marriage have to do with the relative value of the state’s interest in combatting discrimination against a discrete group of its citizens?  The U.S. government effectively argues that certain forms of discrimination are less objectionable than others, to the point that states have less power to protect against those forms of discrimination.

The DOJ proved a powerful ally in the march toward marriage equality, with Solicitor General Donald Verrilli advancing scintillating arguments on behalf of Petitioners in Obergefell.  Will the Trump DOJ have a similar impact for those seeking to refuse service to same-sex couples?

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Whither now Justice Kennedy?

Chief Justice Rehnquist once described the Supreme Court’s First Amendment Establishment Clause jurisprudence as “Januslike,” in that they “point[ed] in two directions.”  Van Orden v. Perry, 545 U.S. 1, 3 (2005).  The same probably could be said of Justice Kennedy’s jurisprudence relevant to the issues raised in the case: (1) the freedom of expression, and (2) LGBT persons’ right to equal dignity under the law.

Justice Kennedy has authored essentially all of the landmark constitutional rulings for gay rights: Romer, Lawrence, Windsor, and Obergefell.  Yet, at the same time, he has been a consistent vote for free speech and association, even when it meant upholding the exclusion of LGBT individuals.  He cast the tie-breaking vote in the case extending First Amendment protection to flag-burning (Johnson) and the Boy Scouts of America’s (BSA) erstwhile policy of excluding gay people from scout leadership roles (BSA v. Dale),[1] and he also joined the Court’s unanimous opinion in the parade case (Hurley).

Last term’s decision in Matal v. Tam, 137 S. Ct. 1744 (2017), was no exception to Justice Kennedy’s support of free expression.  He voted with the Court in concluding that the Lanham Act’s disparagement clause violated the free speech rights of the band seeking trademark protection for its name, The Slants.  He did write separately in that case, however, to express his concern that the case should be resolved on the grounds of viewpoint discrimination.

Though not directly on point, Justice Kennedy’s vote with the majority in Christian Legal Society Chapter v. Martinez (“CLS”), 561 U.S. 661 (2010), may shed some light on his thinking here.  In CLS, the Court upheld a law school’s all-comers policy, which conditioned funding and recognition of student groups upon their agreement to allow all students to be members, against the three-headed First Amendment challenge (free speech, expressive association, free exercise) of a Christian group that sought to exclude homosexual students.  The Court applied a limited-public forum analysis that also accorded some deference to the university’s pedagogical mission.  Yet, critically, the Court deemed the law school’s all-comers policy viewpoint neutral, notwithstanding the incidental effect on some speakers, messages, or exclusionary membership policies, because it did not target a specific group’s expression.

Justice Kennedy also wrote a separate concurring opinion in CLS describing the all-comers policy as “a permissible effort to preserve the value of [the law school’s forum],” explaining that “[a] school quite properly may conclude that allowing an oath or belief-affirming requirement, or an outside conduct requirement, could be divisive for student relations and inconsistent with the basic concept that a view’s validity should be tested through free and open discussion.”  Though he left open the possibility of First Amendment protection in a future case where there was evidence that the university applied the neutral policy in a discriminatory manner, he found no evidence of pretext or discrimination in that case.

Slate’s excellent pre-argument podcast, featuring Dahlia Lithwick and New York Times Supreme Court reporter Adam Liptak (listen here), explores Justice Kennedy’s dilemma—both his steadfast support of gay persons’ equal dignity and his commitment to free expression, including the view that sometimes, minority viewpoints deserve a little latitude in voicing their objections.  In all likelihood, Justice Kennedy probably will ask questions during the argument that give both sides comfort and heartburn.  It will be interesting to see, however, which way Janus looks at this case.

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Counting to 5, or a Broader Consensus?

No doubt, everyone in the Courtroom will be following Justice Kennedy’s every sigh, furrowed brow, and shrug.  But don’t be surprised if the other Justices break with their perceived alignments and jump in with insightful questions.  First Amendment cases sometimes have a tendency to produce unusual coalitions, and what is deemed “conservative” and “liberal” has a tendency to change over time.

For instance, in the flag-burning case (Johnson), First Amendment protection rested on a peculiar assortment of liberal (Brennan, Marshall, Blackmun) and conservative Justices (Scalia, Kennedy).  In Hurley, a liberal Justice (Souter) wrote for a unanimous Court in rejecting application of Massachusetts’s public accommodation law to change the makeup of the private group’s parade.  Meanwhile, in Employment Division v. Smith, five conservative Justices (Rehnquist, Scalia, White, Kennedy, and O’Connor concurring in judgment) joined one of their liberal colleagues (Stevens) in narrowing free-exercise protections and denying a request for a religious exemption to the Oregon drug law.  Dissatisfied with the perceived weakening of protections for religious liberty, Congress passed the RFRA.  And less than 30 years later, it is often conservative lawmakers that are pushing for greater protection of religious liberty through the passage of RFRAs and likeminded legislation.  These decisions serve as a reminder that Supreme Court Justices are not just politicians in robes, and that the overused left/liberal and right/conservative labels fail to capture the integrity, foresight, and independence of thought that has long been a hallmark of their work.

So don’t be surprised if some of the more liberal Justices might be skeptical of the scope of Colorado’s public accommodations laws, in light of the Court’s teaching in Hurley and Dale.  By the same token, Court conservatives might have qualms with the broad and discretionary reach of Petitioners’ First Amendment theory and the absence of a clear limiting principle that would enable states to pass public accommodations laws protecting minorities that have been subjected to discrimination.

Specifically, keep an ear out for Chief Justice Roberts, whose opinion in FAIR reaffirmed the O’Brien principle that actors cannot simply label their conduct speech to invoke First Amendment protections.  First Amendment free-speech protection, he concluded, extends only to conduct that is inherently expressive.  And such inherently expressive conduct conveys a message of some sort that a reasonable audience would understand.  The Chief Justice’s analysis in FAIR suggests that the expressive-conduct test retains an objective audience-impact component, such that the actor should not need to explain the meaning of his conduct.

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[1]BSA officially ended its ban on gay adult leaders in July of 2015.  (See article here.)

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.