Masterpiece Cake

Another case that the Court will hear next Term involves a baker who refused to make a wedding cake for a same-sex wedding. The state anti-discrimination statute was held to prohibit that refusal and a Colorado court ordered an equitable remedy. On certiorari. the baker is arguing that his Free Speech and Free Exercise rights are violated by that decision.

I find this case difficult. On the one hand, personal beliefs cannot result in a general exemption from anti-discrimination statutes. On the other hand, there is something very troubling about making someone to engage in creative expression against their will.

One way of thinking about this problem involves focusing on what constitutes creative expression for a free speech claim.  (I think this claim is more compelling than the free exercise claim, though some of the Justices will disagree.) Say I own a banquet hall that I rent out for weddings, but I say no same-sex weddings. It’s hard to see how there is any expression involved in banquet hall rentals that would entitle me to say no.How about a restaurant hosting a wedding reception? Cooking is expressive to some extent, but if I just do a standard set of menu choices for weddings than it is hard to see how the kind of wedding reception that I’m hosting matters for expression.

The strongest expressive claim in this context is a wedding photographer. Wedding photography involves a lot of time, thought, and creativity. To say that someone must photograph a same-sex wedding when they do not want to strikes me as a serious First Amendment problem.

How about wedding cakes? My initial thought is that this claim is not that strong as framed by the record.  Making a cake can be expressive, especially if you get a custom design. But there are many, standard wedding cakes where the only “expression” is writing the names on the cake. If a baker was presented with a same-sex couple who said, “We want you to do a cake and have lots of specific requests to make,” maybe that could involve enough expression to present a problem. In this case, however, the baker just said he wouldn’t do cakes for a same-sex weddings. It wouldn’t matter what kind of cake was ordered or if the request was simply, “I want that cake in the window.” This seems more like the banquet hall or restaurant scenario than the photographer.

In sum, I think that there is a First Amendment limitation on the reach of anti-discrimination statutes for same-sex marriages, but I don’t think that the petitioner qualifies.

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9 Responses

  1. Joe says:

    The person chooses to serve the public by establishing a public accommodation so it is not quite ‘against their will.’

    Once they do choose to establish one, people do have to express, associate and so forth on an equal basis per the law, even if it goes against their personal beliefs in a variety of ways. I appreciate the line drawing because these days free expression has a wide breadth. What of a passport service — is that enough “art” in a photography sense to count?

    And, as a matter of personal conduct, I do not deny some sort of expression is involved in simply making a wedding cake and giving it to someone. But, the “message” changes once it is done by a public business. As would expression by a sales agent vs. a personal conversation with similar content (politely engaging with a bigot is not something I need to do but might if s/he was a customer).

    Anyway, your conclusion is narrow — it might not even apply to a custom cake shop. I fear the justices who took this case want a more broad holding. We shall see.

  2. Curmudgeonly Ex-Clerk says:

    This problem could be made much simpler if we narrowed the concept of “public accommodation” to cover less ground. We ought to do so precisely because of the tension that discrimination law creates between mutually incompatible rights in this context.

  3. Brett Bellmore says:

    “On the other hand, there is something very troubling about making someone to engage in creative expression against their will.”

    The problem isn’t creative expression. There ought to be something very troubling about making somebody dig a ditch against their will. It’s the “against their will” part that ought to be troubling! And never mind why it’s against their will, that’s utterly irrelevant.

    Isn’t it ironic? We started out as a country where slavery was legal, fought a bloody war over it, constitutionally outlawed it, and now we’re gradually recreating it in the name of “fighting discrimination”. The problem here is that “public accommodation” laws, always a dubious infringement of liberty even where they addressed a real problem, have gradually morphed into the very evil we began with: Involuntary servitude.

    The automatic response to that, of course, is that you don’t have to be a baker. But you have to be SOMETHING, and the reach of these laws has been growing like a cancer. They started out only reaching vital necessities, where a stranded traveler might end up living under a bridge and eating out of dumpsters. And now it’s reaching the point where you can’t make balloon animals without being considered a ‘public accommodation’.

    The time has come, it’s long since arrived, when we should reconsider the whole idea of public accommodation laws. They are an obscenity in a country which claims to be free.

  4. Joe says:

    I oppose limiting the reach of bans on not serving blacks myself but it’s somewhat less bad if the 1A case is stronger.

    As I have repeatedly mentioned to Brett, even back in the 19th Century, public accommodation laws did not just apply to “travelers” and such. As with other duties of being a member of society, such as militia service, jury duty and the like, this was never deemed involuntary servitude. That term had a meaning, has a meaning. In fact, people had to “dig a ditch” — do annual road duty — in various places. They had to do things like upkeep of easements in front of their property that the public might cross. etc.

    We did not “fight a war” over the centuries long rules where you had to serve customers, be them black, Catholic or gay. Brett’s position would end civil rights law in general. An average store owner, some store not a necessity, would — INVOLUNTARY SERVITUDE!!!! — be able to not serve blacks, women, etc. The ability to do this generally seen as an obscenity, you are better off trying for narrower game.

    • Brett Bellmore says:

      “Brett’s position would end civil rights law in general.”

      Forcing somebody to bake you a cake isn’t a “civil right”; Civil rights are your rights with respect to the *government*; Freedom of speech, the right to keep and bear arms, the right to trial by jury, equal protection of the law.

      You could eliminate every public accommodation law in the country, and civil rights would be impacted not at all, except for the civil right embodied in the 13th amendment:

      The right not to be subject to involuntary servitude.

      Nor does your reference to militia service, jury duty, and so forth demonstrate anything. The government has always made an exception to allow itself to coerce people, without coercion there isn’t any government. The existence of taxation is no defense of robbery, and the existence of conscription no defense of slavery.

      Indeed, the 13th amendment explicitly permits the government to enslave people itself, with due process.

      I think there’s no greater demonstration of Nietzsche’s aphorism, than the civil rights movement: “He who fights too long against dragons becomes a dragon himself; and if you gaze too long into the abyss, the abyss will gaze into you.”

      • Joe says:

        Brett didn’t disagree with me — his redefines “civil rights” so that the general rule that you cannot deny service by race at a store, e.g., would not be covered. No one will starve if one store out of five is allowed to deny service to blacks, at least in most areas. Still, it is basic civil rights law.

        It is not involuntary servitude as defined by the 13th Amendment. It was not in the 19th Century either. Brett sometimes cares about how terms were used historically. Uses it as a major guide on applying rules. Except when he doesn’t. So, e.g., it was the rule in many places that you had to serve blacks at places of public amusement. That isn’t some necessity. But, it was often the law & not deemed involuntary servitude.

        Government involves some sort of coercion, as your reply readily shows. The 13A to be exact, says “duly convicted.” Not “due process” alone. Ignore me all you want. It wasn’t something that popped up after the 1960s. In the 1860s, your understanding was rejected.

  5. Gerard Magliocca says:


    Presumably a baker has to comply with local health regulations (including periodic inspections), fire codes, minimum wage laws, etc. All of these things limit the baker’s freedom. How is a public accommodation different?

    • Brett Bellmore says:

      1. None of those things are a command that the baker labor for a specific private person even if he doesn’t want to.

      2. All of those things are the government’s actions on behalf of the government. Governments routinely limit your freedom, but they do not routinely delegate to individuals the power to limit your freedom. The government taxes, you may not steal. The government conscripts, you may not enslave. The government routinely obtains compliance by threats of violence, but you may not commit extortion.

      3. There’s an on point constitutional amendment.

      I’ll grant it’s going to be a long, uphill battle to get rid of public accommodation laws. The power to force complicity is as precious to the victor as it is offensive to the loser, in these modern culture wars. Hopefully, though, we won’t have a second Civil war to settle this point again: No man should be compelled to labor for another.

      • Joe says:

        1. So what? You set forth as an example digging a ditch. Those things require labor that some rather not do. If they run a business, they are forced to do it. It might even require digging a ditch for certain businesses.

        2. Minimum wage laws are on behalf of the workers. Such laws repeatedly are for the public, like here.

        3. But, those laws require labor. The word “servitude” doesn’t just mean “serving people.” And, the amendment — the phrasing goes back to 1787 (Northwest Ordinance) was NEVER EVER used as broadly as you want it to.

        It is not a result of “modern culture laws.” They were expanded in various ways, but by your lights the more restrictive rules — at the very least lots of state and local rules involving serving black people equally as whites, were violations of the amendment. Laws in place in the 19th Century. So, yes, very uphill battle.