When there is a major advance in civil rights for a minority group that has been widely discriminated against, do people have the right to dissent with the new standard? Should individuals and businesses be treated the same with respect to the fundamental rights protected by our Constitution? Are artists, artisans, and other craftsmen exercising their free speech rights when they create custom works for paying clients in the normal course of business? Where does society draw the line when it comes to sincerely-held religious beliefs? And how, if at all, is racial discrimination different than discrimination based on sexual orientation? All of these critically important societal questions are deeply integrated in one of the most widely discussed and anticipated Supreme Court cases of this term, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.
This case, in brief, is about a gay couple, Charlie Craig and David Mullins, who visited Masterpiece Cakeshop, a Denver-area bakery specializing in custom cakes, in 2012 to request a custom cake for their wedding. Jack Phillips, the bakery owner, is a pious Christian who refuses to bake cakes for various events that conflict with his religious beliefs, including Halloween, divorce parties, and, yes, same-sex weddings. The couple was turned away, and being naturally quite upset, they filed a claim with the Colorado Civil Rights Commission. Colorado is one of 21 states which forbid discrimination against LGBT people in public accommodations, and the state’s Civil Rights Commission found in favor of the gay couple, Craig and Mullins, who were refused the cake. Phillips, the baker, was ordered to either create wedding cakes for all weddings, same-sex and opposite-sex, or not to create wedding cakes at all, as well as to provide training on the Colorado public accommodations laws to his staff. Mr. Phillips decided to stop creating wedding cakes entirely, losing approximately 40% of his overall business. After appealing the verdict to all levels of Colorado courts, which affirmed the Civil Rights Commission’s decision, he looked to the Supreme Court for help. The Court granted his petition for certiorari in June. Oral arguments were made on Tuesday, December 5, and as of this writing, the decision in the case is still pending. The remainder of this piece will parse some of the oral arguments made on the 5th, but will mainly deal with how I think the Court should decide the case and answer the crucial questions I posed in the introduction.
Before I get into the nitty-gritty of the Masterpiece case, I need to delve into a few short asides to explain some background material that will matter in just a short while, I promise. First, I need to touch on two important philosophers and key concepts of theirs that have had major impacts on how we as Americans conceive of our own Republic, and how the founders of the Republic conceived of it themselves. Those two men are Thomas Hobbes and John Locke, names that may very well be familiar to you if you’ve taken an introductory philosophy or political science course. If so, bear with me, as I’m going to quickly explain some basic tenets of their ideologies that will play key roles in how I conceive of the Masterpiece case. First comes Hobbes’s notion of the ‘state of nature’, which he describes as being the ‘default’ state of mankind, in place “at the beginning of time,” in “primitive” societies, or in anarchies. This ‘state of nature’ involves mankind violently competing for resources without regard for each other, looking out solely for themselves, and securing personal protection first and foremost. In this state, we as humans only have our own selves and self-motivations, and lack any larger organizing principles, such as government. Having anything larger than oneself assumes that mankind has left the ‘state of nature’ and begun to organize itself into some form of collective, or basic political entity. Hobbes describes these people as having entered into a ‘social contract’ and left the ‘state of nature’. Now onto Locke, whose conception of ‘natural rights’ plays off of Hobbes’s ‘state of nature’. Natural rights, to Locke, are the fundamental, intrinsic rights that we have as humans without anything else needing to be present. In other words, these ‘natural rights’ are the rights we have as humans even in the ‘state of nature’. For Locke, these rights included the rights to ‘life, liberty, and property’, and humans were bound by natural law to respect each other’s natural rights even within the ‘state of nature’ (something he and Hobbes disagreed on). [I’m doing these concepts a bit of a disservice by summing them up so briefly, so if you’re interested in learning more about them or Locke and Hobbes in general, I’d heartily recommend the excellent Philosophize This! Podcast by Stephen West, a series of short episodes covering nearly all the major philosophers I’ve ever come across.] The framers of our Constitution took many of their ideas from Locke and Hobbes, and if one looks hard enough, one can find the fingerprints of these great philosophers throughout America’s founding documents.
The other short tangent I’ll take you on before getting back into the meat of the Masterpiece case relates to another incredibly controversial and much-discussed Supreme Court decision, this one decided in 2010: Citizens United v. Federal Election Commission. In this case, the Supreme Court largely gutted campaign finance laws that sought to limit corporate spending on political activities, including on direct political activism, in this case a film that criticized then-presidential-candidate Hillary Clinton. The Court, in its majority opinion, extended full First Amendment free speech protection to corporate entities and allowed that political spending is equivalent to actual speech. Previous cases had extended First Amendment protections to corporations, but in Citizens United, that protection was expanded and affirmed. This decision also truly cemented the idea of corporate entities as ‘citizens’, ‘individuals’, or ‘people’ in the American Republic, which has long been a claim in law and business, but was not until Citizens United a mainstream political or societal concept. In his blistering dissent to the majority opinion, Justice John Paul Stevens wrote about the dangers of the corporate form, largely hearkening back to the original text of the Constitution’s preamble, which begins with “We the people…”, not “We the people and variously structured corporate entities…” Since the Citizens United decision, American thinking around corporations has become far more politicized and partisan, a trend not necessarily heading in that direction without the Court’s decision.
Now that I’ve seemingly talked about completely random stuff for a few paragraphs, let’s get back to the Masterpiece case and tie this all together.
The first issue that I want to deal with is the main argument that the petitioners, Jack Phillips and Masterpiece Cakeshop, and their attorneys, Kristen Waggoner and US Solicitor General Noel Francisco (arguing as amicus curiae, in support), are using to bolster their case. They are arguing that to compel Mr. Phillips to custom-create a cake for this same-sex wedding would be a violation of his First Amendment free speech rights, as he is a cake artist and the process of creating a cake for a wedding is tantamount to speaking at that wedding and endorsing it. Personally, I think this argument is complete garbage, and multiple Justices seem to agree with me based on their persistent and aggressive questioning at oral arguments. Within the first few minutes of Counsel Waggoner’s time, she was asked a series of questions by Justice Ginsburg that led to this exchange (slightly edited for clarity):
Ginsburg: At a wedding ceremony, I take it, the speech is of the people who are marrying and perhaps the officiant, but who…who else speaks at a wedding?
Waggoner: The artist speaks, Justice Ginsburg. It’s as much Mr. Phillips’s speech as it would be the couples’. And in Hurley, the Court found a violation of the compelled speech doctrine.
Ginsburg: Who else then? Who else is an artist? Say the…the person who does floral arranging, owns a floral shop. Would that person also be speaking at the wedding?
Waggoner: If the…if they are custom-designing arrangements and they are being forced to create artistic expression which this Court determines is a message…
Ginsburg: How about the person who designs the invitation?
Waggoner: Yes.
Ginsburg: The invitation to the wedding or the menu for the wedding dinner?
Waggoner: Certainly, words and symbols would be protected speech, and the question would be whether the objection is to the message provided or if it’s to the person.
Kagan: So the jeweler?
Waggoner: It would depend on the context as all free-speech cases depend on. What is the jeweler asked to do?
Kagan: The hairstylist?
Waggoner: Absolutely not. There’s no expression or protected speech in that kind of context, but what it would…
Kagan: Why is there no speech in…in creating a wonderful hairdo?
Waggoner: Well, it may be artistic, it may be creative, but what the Court asks when there’s…
Kagan: The makeup artist?
Waggoner: No. What the Court would ask…
Kagan: It’s called an artist. It’s the makeup artist.
Waggoner: The makeup artist may, again, be using creativity and artistry, but when this Court is looking at whether speech is involved, it asks the question of if it is communicating something, and is it analogous to other protected…forms of speech.
Kagan: But I’m…I’m quite serious, actually, about this, because, you know, a makeup artist, I think, might feel exactly as your client does, that they’re doing something that’s of…of great aesthetic importance to the…to the wedding and to…and that there’s a lot of skill and artistic vision that goes into making a…somebody look beautiful. And why…why wouldn’t that person or the hairstylist…why wouldn’t that also count?
Waggoner: Because it’s not speech. And that’s the first trigger point of this case…
Kagan: I mean, some people might say that about cakes, you know? But you have a…you have a view that a cake can be speech because it…it involves great skill and artistry. And I guess I’m wondering, if that’s the case, you know, how do you draw a line? How do you decide, oh, of course, the chef and the baker are on one side, and you said, I think, the florist is on that side, the chef, the baker, the florist, versus the hairstylist or the makeup artist? I mean, where would you put a tailor, a tailor who makes a wonderful suit of clothes? Where does that come in?
Waggoner: Your Honor, the tailor is not engaged in speech, nor is the chef engaged in speech but, again, this Court…
Kagan: But why well, why…well…woah. The baker is engaged in speech, but the chef is not engaged in speech?
This exchange just goes to show how obtuse the free speech argument of the petitioners is; Counsel Waggoner seems to have no clear standard whatsoever as to what type of occupation is protected under her own idea of speech. Bakers are obviously protected, as her client is a baker, but chefs aren’t protected? Florists are, but hairstylists and makeup artists aren’t? There is no standard as to what speech actually is. Justice Sotomayor comes in just after the above exchange and talks about how food, as its principal purpose is always to be eaten, should not be considered primarily expressive, as it isn’t mainly created for that purpose. Counsel Waggoner responds with her same answers about how the Court defines speech and expression, and seems to be getting nowhere fast, until Justice Alito (who is sympathetic to her cause) swoops in for the rescue and asks counsel whether architectural designs would be “not entitled to First Amendment protection because one might say that the primary purpose of the design of a building is to create a place where people can live or work,” which is an excellent counterfactual to Justice Sotomayor’s example of how food should not be entitled to protection due to its contrary primary purpose. Unfortunately for Ms. Waggoner, she steps right into it here, by somehow claiming that architectural designs aren’t protected by the First Amendment (!) while cakes are. Again, this shows how the free speech argument in this case is a total crock. I personally believe that the petitioners are choosing to use the free speech argument instead of what I believe is the appropriate religious freedom argument largely because they are looking to attract the Court’s swing vote, Justice Anthony Kennedy, who is as close to a free-speech absolutist as the Court has today. Justice Kennedy was the swing vote in Citizens United, another major free-speech case, and has been persuaded by those types of arguments before. However, this particular free-speech argument was a complete disaster, an utter canard that had no logical path whatsoever. I’m glad that Justices Ginsburg, Kagan, and Sotomayor, with an unlikely and most definitely unintentional assist from Justice Alito, were able to dismantle the free-speech aspect of this case so rapidly.
Now that I’ve dealt with the argument the petitioners put up initially, I need to delve into the actual argument that should determine how this case is decided. It’s also a First Amendment concern, but deals with the free exercise of religion, not freedom of speech. Mr. Phillips claims that he has a deeply-held religious belief that same-sex marriage is wrong and a sin in the eyes of God; I believe him, and having heard interviews with Mr. Phillips I personally think that he is honest about his beliefs and is a sincerely religious man. If you’ve read my (incredibly long) essay, ‘In Defense of the First Amendment’, you may know that I believe that individuals should have nearly limitless First Amendment rights, including the rights to freedom of religion, speech, and association. With this background, let me address the first question I asked in the introduction to this piece: When there is a major advance in civil rights for a minority group that has been widely discriminated against, do people have the right to dissent with the new standard? My answer to this question is yes. I believe that people should have the right, in their personal lives, to believe whatever they would like, no matter how backward or abhorrent I may find it. I am in favor of the legalization of same-sex marriage, but I do not think that those who are against that decision should be shunned from society. I think this tolerance for difference in opinion is an important aspect of any developed civilized society, as I noted in Part III of my First Amendment series.
Given those personal beliefs, you may wonder why I am coming down against Mr. Phillips and Masterpiece Cakeshop in this case. There are a few reasons, and they tie back into those seemingly random tangents we went on together earlier. The main reason as to why I fall heavily on the side of Colorado in this case, even if argued on the free exercise of religion basis, is that one’s action in a business or corporation, governed by public accommodations law, is entirely separate from one’s personally-held beliefs. In these cases, the public good must always come before the individual’s preference, no matter how deeply felt the religious objection. I do not come to this conclusion lightly, as I have several reasons for this decision. First goes back to the philosophers I touched on earlier, John Locke and Thomas Hobbes, and the fundamental and intrinsic difference between corporations and people. Humans exist in the Hobbesian ‘state of nature’, but corporations by their very nature cannot. Corporations exist at the pleasure and discretion of the State, and operate under license from the government. Individuals are the ones who have Locke’s ‘natural rights’ and behave under his ‘natural law’ conception, not corporations, which inherently have different motives as they are set up by humans for various purposes, mainly for making of profits. The Bill of Rights, especially the First Amendment, is largely meant to codify Locke’s ‘natural rights’, as well as a few others that the State cannot infringe upon; the way it is written shows that the framers conceived of the rights protected as inherently existing in the ‘state of nature’ and not as being granted by government to man. For example, look at the phrasing of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” This wording: “shall make no law,” “prohibiting the free exercise,” “abridging the freedom of,” “the right of the people,” describes rights that already are assumed to exist ex-governmentally, and the Constitution is meant to stop the government from infringing upon these preexisting rights. As corporations are simply creations of humans given grants to operate by the government, these ‘natural rights’ are not inherent to them. This is where the Supreme Court went so deeply awry in the Citizens United case, and why I am afraid that poor precedent will be wrongfully applied here. Mr. Phillips, in his role as owner/operator of Masterpiece Cakeshop Ltd., a corporate entity, does not port his individually-held ‘natural rights’ to his corporate entity and thus cannot choose when and when not to comply with a broadly-enforced public accommodations law. Mr. Phillips, in his private life, can choose to discriminate as much as he pleases, but when he chose to apply for a business license from the state of Colorado, he was implicitly agreeing to comply with the public accommodations laws of that state, and relinquished some of his individual rights for the privilege of attaining a business license. As Colorado, and indeed any state or national government, can set the conditions for earning and retaining any business license, I see no problem with Mr. Phillips being compelled to comply with a broadly enforced public accommodations law. Not only is this law enforced fairly and among all public businesses in the state, he is able to continue operating his public business in alignment with his private religious principles by simply ceasing to unfairly discriminate, which would entail no longer baking any wedding cakes at all, as he cannot serve the population in an unbiased manner otherwise. Mr. Phillips can also move to one of the 30 states which have no public accommodations laws that protect LGBT populations.
Public accommodations laws are incredibly important in creating an open, fair, and unbiased business climate and allow all Americans to access public businesses in a reasonable and decent manner. These laws have been on the books for quite a long time and have a solid history of compelling reticent business owners to serve unfairly maligned populations in an equal and just way. The Masterpiece case has been heard and decided on in multiple forms over the past 50 years, almost exclusively on the basis of race instead of sexual orientation. In a series of cases in the 1960s following the 1964 passage of the Civil Rights Act, the Supreme Court found that restaurants and other public accommodations across the South (and the rest of the country) could not segregate or discriminate against black patrons based on their race. These landmark cases, including Katzenbach v. McClung and Bouie v. City of Columbia, determined that racial discrimination was illegal, whether it was argued under trespass laws, the 13th Amendment, or an overbroad application of the Commerce Clause. In Newman v. Piggie Park Enterprises, Inc., the owner of the company being sued for racial discrimination argued that his religious beliefs opposed integration; he lost and the case ended up changing the way attorney’s fees are awarded in the US. In the 1970s and 1980s, a series of cases involving the private religious college, Bob Jones University, stripped that school of its federal nonprofit status as it barred African-Americans from attending for ‘religious reasons’. The Supreme Court decided, twice, against Bob Jones University, and it was stripped of nonprofit status for its religiously-minded discrimination. Given all of these precedents against both violation of public accommodations laws and religiously-minded discrimination, one would assume that the Masterpiece case would be a no-brainer. But apparently there is a significant difference between discrimination on the basis of race and discrimination on the basis of sexual orientation that has not yet been made clear to me. If a state wants to protect both race and sexual orientation in its public accommodations laws, the Court should enforce those protected classes equally, as that was what was obviously meant by the lawmakers when they included both classes in the body of law.
Overall, I firmly believe that anyone should have the private right to dissent with the rest of society and should be able to express their opinion as they see fit. That stops when the individual chooses to request a business license from the State and enters into provision of a public accommodation; at that point the person gains the privilege of being able to earn money from the public, but also has the concurrent responsibility to serve that public equally under the state’s public accommodations laws. The new corporate entity that is serving the public does not have the same individual ‘natural rights’ that the human person who created or owns the corporate entity does, and does not have the ability to pick and choose with whom that entity does business if it is choosing in an unfair manner inconsistent with law. Those artisans, custom-craftsmen, and artists who express themselves in their daily work should be treated with respect, but they do not gain exemption from the same generally-applicable public accommodations laws that their less-creative brethren are subject to; otherwise, we’d have a whole world of cement artists (road pavers), tiling craftsmen (roofers), and water-flow artisans (plumbers) claiming exemption from important public accommodation laws too (no offense to any of the important professions listed above). People need to realize that going into business and creating a corporate entity is not a right, but a privilege granted us by the State, one that comes with significant attendant responsibilities. One of those responsibilities is serving the public equally, whether that is by race or by sexual orientation, or any other societal class that your state’s public accommodations laws have deemed important enough to protect.