A Pandora’s Cake of Discrimination

Artwork by Hilary Cole

Artwork by Hilary Cole

by Bob Schober

Consider this story: Two gay men walk into a bakery and ask to buy a cake for their wedding. The owner, citing religious conscience, declines. The two men sue the owner and win in lower courts, but the owner appeals, and the Supreme Court will hear arguments this term.

Here is the actual story: In 2012, Charlie Craig and Dave Mullins went to Masterpiece Cakeshop in Denver and asked to order a cake to celebrate their upcoming wedding. The owner and baker, Jack Phillips, declined, saying he refuses to design custom cakes that conflict with his religious beliefs, specifically for same-sex marriages and Halloween and divorce celebrations. Phillips’s main argument is that the act of baking and decorating a custom wedding cake involves enough artistic expression to warrant First Amendment protection. A second argument is his religious, doctrinal beliefs should exempt him from being compelled by law to doing such a thing.

Are his arguments constitutional, thereby allowing private religious beliefs to discriminate in a secular marketplace?

The First Amendment prohibits the government from interfering with a citizen’s right to practice their own religion, and no party to the case disputes that right.

Phillips runs a business, but here is a key question: Can Phillips, or any business owner, solicit business from the general public to buy his services but refuse to provide such services to particular customers, especially these two gay men? If the Court decides for Phillips, will legal interpretations emerge allowing for other business owners, citing freedom of expression, to join in the same discrimination? That’s the concern of some LBGTQ advocates, who fear a broadening of discrimination in community and secular life.

The 50 states are split on the key question, depending on each state’s discrimination laws. The Supreme Court will decide that question for the nation in its 2017 term. As of this writing, the Court had not set a date for oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

Federal Law
In 2015, the First Amendment Defense Act was introduced to the House of Representatives in Congress and remains in committee. That act prohibits the federal government from taking discriminatory action against a person, defined to include corporations, “for acting in accordance with their belief that favors so-called traditional marriage.”

In May 2017, Trump issued an executive order stating, “No American should be forced to choose between the dictates of the Federal Government and the tenets of their faith,” adding that federal law protects the right of individuals and organizations “to participate fully in civic life without undue interference by the Federal Government.”

Since January 2017, legislatures in nine states, including Washington state, have introduced or enacted Freedom of Religion Restoration Acts. The Washington House of Representatives introduced its own act in January 2017, which is now in committee, but the state Senate has not even introduced the bill as of this writing.

Under the current state laws of Washington, Colorado and 18 other states, Phillips and all commercial businesses cannot discriminate against anyone in the LGBTQ community. In other states, including Mississippi and Alabama, he can. The issue depends on whether a state has amended its laws based on Title VII of the Civil Rights Act of 1964 to include “sexual orientation” as a protected class against discrimination in “public accommodations.”

A key issue before the Court: federal law does not recognize sexual orientation as a protected class.

Washington state added that protection on June 8, 2006. The Washington State Human Rights Commission (RCW Chapter 49.60) defines public accommodations under Washington law as:

“Any place that sells goods, offers food or drink for charge, is a place of entertainment, recreation or assembly; or is for the lodging of guests … as are schools, government buildings, libraries, museums, medical offices, public conveyances and theatres.”

Florists are not exempt. In 2015, a Benton County Superior Court judge ruled — Ingersoll v. Arlene’s Flowers ­— that Arlene’s Flowers in Richland, Washington, violated the state’s anti-discrimination law by refusing to sell flowers for the wedding of Curt Reed and Robert Ingersoll. The suit was filed by the American Civil Liberties Union, and the Washington Supreme Court upheld the decision on Feb. 16, 2017.

Differing Views
The Court will likely split 4-4, liberals v. conservatives, with Justice Anthony Kennedy the likely deciding vote. Kennedy wrote the majority decision in 2015 in Obergefell v. Hodges granting the LGBT community the full constitutional right and privilege of marriage, but he is also a staunch protector of freedom of speech. It appears the Department of Justice has crafted its amicus brief in support of the baker with Kennedy in mind as a case of “compelled speech” requiring “heightened scrutiny.” Here are excerpts from the brief, filed with the Court on Sept. 7, 2017:

“For the most part, individual First Amendment rights have coexisted comfortably with federal and state public accommodation laws. That is because those laws generally focus on preventing discriminatory conduct rather than modifying the content of expression.”

“Heightened scrutiny is appropriate at least where a law both compels the creation, for a particular person or entity, of speech or a product or performance that is inherently communicative, and compels the creator’s participation in a ceremony or other expressive event.”

“Colorado’s law requires Phillips to design and create a custom wedding cake that is inherently communicative … and forces Phillips to participate through his inherently communicative creation, in an important ritual at a wedding celebration — a profoundly expressive, and often religious or sacred event.”

“This is ‘compelled speech’ in violation of conscience which requires heightened scrutiny.”

Twenty states, including Texas, Wisconsin, Utah, Tennessee and Oklahoma, filed an amicus brief in support of Phillips. Eighty-six House Republicans did likewise.
The State of Colorado and the two men, in their brief to the Court, argue that the public accommodations law regarding discrimination pertains only to conduct, not speech.
“No reasonable observer would understand the Company’s provision of a cake to a gay couple as an expression of its approval of their marriage,” states the brief.

If the Court decides for Phillips, Colorado and the couple argue, then what would prevent “countless other businesses” including hair salons, tailors, architects and florists “that use artistic skills when serving customers and clients” from claiming “a safe harbor from any commercial regulation simply by claiming … that complying with the law would send a message with which they disagreed.”

Title VII of the Civil Rights Act of 1964 prohibits discrimination by race, color, religion or national origin by privately owned places of public accommodation. A business can refuse services to a member of a protected class as long as the reason is not arbitrary. For example, a common sign, “We reserve the right to deny service to anyone” could be enforced arbitrarily, but “No shirt, no shoes, no service” is legal if applied equally to everyone. A restaurant can’t deny service to a black man not wearing a tie but allow a tieless white man to be served.

Mary Bonauto, Civil Rights project director at GLBTQ Legal Advocates & Defenders, believes the baker’s case could “draw new constitutional lines about speech in the marketplace — either as ‘pure speech’ or ‘expressive conduct’” which could open a Pandora’s box of new definitions of discrimination. Bonauto presented her counter argument in “Symposium: Commercial products as speech — when a cake is just a cake.”

“If the Supreme Court were to accept a rule that simply providing commercial goods or services conveys a message of approval and endorsement that cannot be compelled, then public accommodations protections will evaporate and many will suffer.

“Would vendors who sew gowns,” she continued, “design place-setting graphics, perform music, cater food or decorate the wedding limousine have free rein to deny wedding services to Jewish and Muslim couples who do not accept Jesus Christ as their lord and savior, to Christians who do, and to those customers lacking any faith at all?”

Phillips admitted that before designing one of his cakes, a store representative “meets with the couple to learn their desires, personalities, preferences and wedding details.”

So how, Bonauto said, can the Supreme Court be asked to regard a cake as “the embodiment of its owner’s personal beliefs and a distinct message of approval for the customers and their celebration? When all is said and done, a beautiful cake remains a cake. And discrimination remains discrimination.”