Come October, the Court will hear the appeal of Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case in which a wedding cake bakery, after refusing to serve a same-sex couple, was found to have violated Colorado's public accommodations provision that prohibits businesses to discriminate against customers on the basis of sexual orientation.
In July 2012, Charlie Craig and David Mullins were planning their wedding, and entered the Lakewood, Colorado, establishment Masterpiece Cakeshop to inquire about a wedding cake. Upon learning the cake would be for the wedding of these two men, owner Jack Phillips immediately refused them service, seeking no details of the design of the cake. Craig and Mullins subsequently filed a complaint with the Colorado Civil Rights Division (CCRD), alleging discrimination under Colorado's Anti-Discrimination Act (CADA), CRS § 24-34-601 of which states in relevant part:
LexisNexis® Custom Solution: Colorado Revised Statutes Research Tool
After CCRD found probable cause of a violation, the state Attorney General filed a formal complaint with the Office of Administrative Courts, and the parties argued cross-motions for summary judgment before the Administrative Law Judge. The ALJ granted summary judgment to Craig and Mullins. Phillips appealed, whereupon the Colorado Civil Rights Commission (CRC) affirmed the ALJ's finding, and issued Phillips its final order to “cease and desist from discriminating against [Craig and Mullins] and other same-sex couples by refusing to sell them wedding cakes or any product [it] would sell to heterosexual couples.” Phillips appealed to the Colorado Court of Appeals (COA), which affirmed the finding of the Civil Rights Commission. The Colorado Supreme Court denied Phillips' request for review. Phillips filed a petition for writ of certiorari with the Supreme Court more than a year ago, but, despite it being presented in conference numerous times, the Court did not act on it until last week. The question the Court has agreed to answer is:
https://www.supremecourt.gov/qp/16-00111qp.pdf
The First Amendment's guarantee of freedom of speech includes protection against compelled speech--the government cannot force a person to speak its message. This is the right of Free Speech that Phillips alleges CADA infringes. One of the earlier and more interesting cases regarding this right was Wooley v. Maynard (1977), instigated when George Maynard was repeatedly cited for violating the New Hampshire law against obscuring or defacing a license plate after he and his wife covered up the state's motto, “Live Free or Die,” a statement they found repugnant to their religious beliefs. The Supreme Court held that forcing the Maynards to be “couriers for ideological messages” and “mobile billboards” violated their right against compelled speech.
However, almost any government requirement can be construed as affecting speech or expressive activity, and the Court has not hesitated to corral the scope of this right. For instance, in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006), an association of law schools (FAIR) sought to enjoin enforcement of the Solomon Amendment, which requires universities that accept federal funds to allow military recruiters equal access to their campuses and students as allowed to recruiters for other employers; FAIR argued that the law compels the universities to host speech with which they disagreed (especially the Don't Ask, Don't Tell policy) and violates their freedom of association. A unanimous Court held that this law is constitutional, that it “neither limits what law schools may say nor requires them to say anything. [. . . ] As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do -- afford equal access to military recruiters -- not what they may or may not say.” (Emphasis in original.) The Court further noted that even high school students are able to distinguish between “speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy.”
The ALJ and Court of Appeals similarly found that Colorado's public accommodations law and the CRC's cease and desist order regulate conduct, not speech. In response to Phillips' contention “that wedding cakes inherently communicate a celebratory message about marriage and that, by forcing it to make cakes for same-sex weddings, the Commission’s cease and desist order unconstitutionally compels it to express a celebratory message about same-sex marriage that it does not support,” the Court of Appeals concluded that “to the extent that the public infers from a Masterpiece wedding cake a message celebrating same-sex marriage, that message is more likely to be attributed to the customer than to Masterpiece.”
Additionally, just as the Supreme Court assured the universities of their right to speak, the COA affirmed that CADA “does not preclude Masterpiece from expressing its views on same-sex marriage -- including its religious opposition to it -- and the bakery remains free to disassociate itself from its customers’ viewpoints. We recognize that section 24-34-601(2)(a) of CADA prohibits Masterpiece from displaying or disseminating a notice stating that it will refuse to provide its services based on a customer’s desire to engage in same-sex marriage or indicating that those engaging in same-sex marriage are unwelcome at the bakery.[11] However, CADA does not prevent Masterpiece from posting a disclaimer in the store or on the Internet indicating that the provision of its services does not constitute an endorsement or approval of conduct protected by CADA. Masterpiece could also post or otherwise disseminate a message indicating that CADA requires it not to discriminate on the basis of sexual orientation and other protected characteristics.”
Phillips' compelled expression argument unsurprisingly relies heavily on Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (GLIB), a 1995 decision where the Court held that Massachusetts' public accommodations law did not require organizers of Boston's St. Patrick's Day parade to include a group which sought to impart a message the organizers did not wish to convey. The parallels between the two cases are, in fact, tenuous. The St. Patrick's Day parade was organized by a unincorporated group of private individuals called the South Boston Allied War Veterans Council, who had been elected from various veterans groups. In no other state would this group or the selection process for the parade marchers meet the definition of a “public accommodation”; Massachusetts' extraordinarily broad and overly specific yet vague public accommodations statute could be understood as including the parade in some sense. However, the lower courts were not in agreement on exactly what aspect of the parade qualified as a “public accommodation.” The Council denied any desire to exclude parade participants on the basis of sexual orientation, openly welcomed any LGB person who wished to march with one of the groups selected for the parade, and allegedly at least a couple of gay people marched with those groups. Thus it is difficult to argue that the Council's exclusion of GLIB from the parade was discrimination on the basis of sexual orientation, as forbidden by the statute. The Court cited abundant factual descriptions and case law demonstrating that parades are inherently expressive activities protected by the First Amendment (e.g., the renown National Socialist Party of America v. Village of Skokie), and consequently noted that applying the public accommodations law so as to require the Council to include GLIB “violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” The Court's decision was unanimous, and I agree with it (though I think the Court should have clarified that the Council's selection process for parade marchers was not a public accommodation even under Massachusetts law). The holding doesn't much help Masterpiece Cakeshop. The COA opinion refers to Hurley only thrice, each time noting its irrelevancy to Masterpiece. Unlike the banner and message GLIB wished to display to the throngs of parade-watchers, applying CADA in the case of Masterpiece does not require that Phillips speak or host any words or message whatsoever.
The further and perhaps most decisive problem with Phillips' claim of compelled expressive activity is that he refused service to Craig and Mullins without even seeking to know what kind of wedding cake they desired. For all Phillips knew when he refused them service, they may have wanted a cake indistinguishable from one a different-sex couple might order. Phillips' refusal of service was not motivated by repulsion to any artistic expressive activity he was asked to perform.
In July 2012, Charlie Craig and David Mullins were planning their wedding, and entered the Lakewood, Colorado, establishment Masterpiece Cakeshop to inquire about a wedding cake. Upon learning the cake would be for the wedding of these two men, owner Jack Phillips immediately refused them service, seeking no details of the design of the cake. Craig and Mullins subsequently filed a complaint with the Colorado Civil Rights Division (CCRD), alleging discrimination under Colorado's Anti-Discrimination Act (CADA), CRS § 24-34-601 of which states in relevant part:
2 (a) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation . . .
LexisNexis® Custom Solution: Colorado Revised Statutes Research Tool
After CCRD found probable cause of a violation, the state Attorney General filed a formal complaint with the Office of Administrative Courts, and the parties argued cross-motions for summary judgment before the Administrative Law Judge. The ALJ granted summary judgment to Craig and Mullins. Phillips appealed, whereupon the Colorado Civil Rights Commission (CRC) affirmed the ALJ's finding, and issued Phillips its final order to “cease and desist from discriminating against [Craig and Mullins] and other same-sex couples by refusing to sell them wedding cakes or any product [it] would sell to heterosexual couples.” Phillips appealed to the Colorado Court of Appeals (COA), which affirmed the finding of the Civil Rights Commission. The Colorado Supreme Court denied Phillips' request for review. Phillips filed a petition for writ of certiorari with the Supreme Court more than a year ago, but, despite it being presented in conference numerous times, the Court did not act on it until last week. The question the Court has agreed to answer is:
Whether applying Colorado's public accommodations law to compel Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.
https://www.supremecourt.gov/qp/16-00111qp.pdf
The First Amendment's guarantee of freedom of speech includes protection against compelled speech--the government cannot force a person to speak its message. This is the right of Free Speech that Phillips alleges CADA infringes. One of the earlier and more interesting cases regarding this right was Wooley v. Maynard (1977), instigated when George Maynard was repeatedly cited for violating the New Hampshire law against obscuring or defacing a license plate after he and his wife covered up the state's motto, “Live Free or Die,” a statement they found repugnant to their religious beliefs. The Supreme Court held that forcing the Maynards to be “couriers for ideological messages” and “mobile billboards” violated their right against compelled speech.
However, almost any government requirement can be construed as affecting speech or expressive activity, and the Court has not hesitated to corral the scope of this right. For instance, in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006), an association of law schools (FAIR) sought to enjoin enforcement of the Solomon Amendment, which requires universities that accept federal funds to allow military recruiters equal access to their campuses and students as allowed to recruiters for other employers; FAIR argued that the law compels the universities to host speech with which they disagreed (especially the Don't Ask, Don't Tell policy) and violates their freedom of association. A unanimous Court held that this law is constitutional, that it “neither limits what law schools may say nor requires them to say anything. [. . . ] As a general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools must do -- afford equal access to military recruiters -- not what they may or may not say.” (Emphasis in original.) The Court further noted that even high school students are able to distinguish between “speech a school sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy.”
The ALJ and Court of Appeals similarly found that Colorado's public accommodations law and the CRC's cease and desist order regulate conduct, not speech. In response to Phillips' contention “that wedding cakes inherently communicate a celebratory message about marriage and that, by forcing it to make cakes for same-sex weddings, the Commission’s cease and desist order unconstitutionally compels it to express a celebratory message about same-sex marriage that it does not support,” the Court of Appeals concluded that “to the extent that the public infers from a Masterpiece wedding cake a message celebrating same-sex marriage, that message is more likely to be attributed to the customer than to Masterpiece.”
Additionally, just as the Supreme Court assured the universities of their right to speak, the COA affirmed that CADA “does not preclude Masterpiece from expressing its views on same-sex marriage -- including its religious opposition to it -- and the bakery remains free to disassociate itself from its customers’ viewpoints. We recognize that section 24-34-601(2)(a) of CADA prohibits Masterpiece from displaying or disseminating a notice stating that it will refuse to provide its services based on a customer’s desire to engage in same-sex marriage or indicating that those engaging in same-sex marriage are unwelcome at the bakery.[11] However, CADA does not prevent Masterpiece from posting a disclaimer in the store or on the Internet indicating that the provision of its services does not constitute an endorsement or approval of conduct protected by CADA. Masterpiece could also post or otherwise disseminate a message indicating that CADA requires it not to discriminate on the basis of sexual orientation and other protected characteristics.”
Phillips' compelled expression argument unsurprisingly relies heavily on Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (GLIB), a 1995 decision where the Court held that Massachusetts' public accommodations law did not require organizers of Boston's St. Patrick's Day parade to include a group which sought to impart a message the organizers did not wish to convey. The parallels between the two cases are, in fact, tenuous. The St. Patrick's Day parade was organized by a unincorporated group of private individuals called the South Boston Allied War Veterans Council, who had been elected from various veterans groups. In no other state would this group or the selection process for the parade marchers meet the definition of a “public accommodation”; Massachusetts' extraordinarily broad and overly specific yet vague public accommodations statute could be understood as including the parade in some sense. However, the lower courts were not in agreement on exactly what aspect of the parade qualified as a “public accommodation.” The Council denied any desire to exclude parade participants on the basis of sexual orientation, openly welcomed any LGB person who wished to march with one of the groups selected for the parade, and allegedly at least a couple of gay people marched with those groups. Thus it is difficult to argue that the Council's exclusion of GLIB from the parade was discrimination on the basis of sexual orientation, as forbidden by the statute. The Court cited abundant factual descriptions and case law demonstrating that parades are inherently expressive activities protected by the First Amendment (e.g., the renown National Socialist Party of America v. Village of Skokie), and consequently noted that applying the public accommodations law so as to require the Council to include GLIB “violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.” The Court's decision was unanimous, and I agree with it (though I think the Court should have clarified that the Council's selection process for parade marchers was not a public accommodation even under Massachusetts law). The holding doesn't much help Masterpiece Cakeshop. The COA opinion refers to Hurley only thrice, each time noting its irrelevancy to Masterpiece. Unlike the banner and message GLIB wished to display to the throngs of parade-watchers, applying CADA in the case of Masterpiece does not require that Phillips speak or host any words or message whatsoever.
The further and perhaps most decisive problem with Phillips' claim of compelled expressive activity is that he refused service to Craig and Mullins without even seeking to know what kind of wedding cake they desired. For all Phillips knew when he refused them service, they may have wanted a cake indistinguishable from one a different-sex couple might order. Phillips' refusal of service was not motivated by repulsion to any artistic expressive activity he was asked to perform.
