Does a devout Christian who is in the business of making wedding cakes for a living have a First Amendment right to refuse to make a wedding cake for a gay couple? Sometime late this year the United Supreme Court will consider that question when it hears oral argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n. We believe the Supreme Court should answer that question with a resounding “no” and reaffirm—as it has held in many past decisions—that a state’s interest in enforcing antidiscrimination laws with respect to public accommodations is paramount.
Disturbingly, President Trump’s Department of Justice recently filed an amicus brief in support of the baker—yet another indication of the Trump Administration’s antipathy towards the LGBTQ community and its willingness to take legal positions that are turning back the clock on decades of antidiscrimination law.
While the case may seem to present a novel question involving the occasional tension between antidiscrimination laws and the First Amendment, the law in this area is long settled. If the Supreme Court sides with the baker, it will do so only by departing from many years of its own precedents.
The baker raises claims involving his right to religious liberty and to freedom of expression. Specifically, he argues that as a devout Christian he should not be compelled to bake a cake that honors a same-sex union because doing so violates his sincerely held religious beliefs. He also argues that forcing him to bake a custom wedding cake for a gay couple constitutes “compelled expression,” or at least expressive conduct, within the ambit of the First Amendment’s freedom of speech clause.
The Supreme Court effectively disposed of the baker’s religious liberty claim nearly 27 years ago, in Employment Div. v. Smith. Justice Scalia, writing for the court, explained that if a law of general applicability incidentally burdens a person’s exercise of his religious beliefs (such as smoking peyote as part of an ancient Native American religious ceremony), the law must be upheld as long as it has a rational basis. Subsequent cases have made clear that a state’s interest in forbidding discrimination in places of public accommodation—and there is no question that a commercial cake baker is a public accommodation—is a rational, if not compelling, state interest.
Whether a custom wedding cake is a form of protected expression under the First Amendment is a more debatable question. But even if it is, that does not mean the baker should win his case. Similar to Smith, the Supreme Court has held that the government can regulate communicative conduct if it has an important interest unrelated to the suppression of the message and if the impact on the communication is no more than necessary to achieve the government’s purpose. United States v. O’Brien, 391 U.S. 367 (1968). Laws barring discrimination in public accommodations do not target the content of speech. Even if they have an incidental effect on speech, they are necessary to protect against discrimination.
We fear the slippery slope of a decision in favor of insulating cake bakers from antidiscrimination laws. Hairdressers consider their work to be a form of artistic expression; may they refuse to provide their services to people they find religiously objectionable? Chefs, too, often consider their cuisine to be a form of expression. Will chefs have a constitutional right to refuse to serve food to persons whose race, religion, sex, sexual orientation or other characteristic the chef deems religiously offensive? It’s not too far down the slippery slope before it becomes constitutionally permissible for the owner of a luncheonette to use religion as an excuse for refusing to serve blacks, Jews, Muslims, and members of other disfavored groups.