In response to:

This Takes the Cake from the July 19, 2018 issue

To the Editors:

Given David Cole’s long-standing involvement in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, it is odd and a little disturbing that he avoids even mentioning core issues of the case in his recent piece, “This Takes the Cake” [NYR, July 19]. Cole never once mentions the issue of compelled speech. As Cole describes it, the case hinged on whether Masterpiece Cakeshop’s proprietor, Jack Phillips, had a right to refuse to sell a product (a cake) to a same-sex couple, and whether Phillips and his defenders could legitimately find a “right to discriminate” in the First Amendment. In Cole’s reading of Justice Anthony Kennedy’s “general rule,” the provision of equal access to goods and services plainly required Phillips to sell the wedding cake to the same-sex couple.

But this case has never been about such a small and limited question. It is, of course, not possible to sell a cake that has not yet been made. As Cole knows quite well, customers of any race, gender, creed, or sexual orientation have been free to purchase cakes from Masterpiece Cakeshop. The same-sex couple in this case did not merely wish to buy a cake. They asked Phillips to custom-design a cake with a highly specific theme and a message, celebrating the marriage of two men. Before selling the cake to the couple, Phillips would have had to put his creative and aesthetic talents to work to produce an elaborately designed, highly expressive product conveying a message in which he did not personally believe.

The making of an elaborate wedding cake with a stylish and prominent visual component is, indeed, a highly expressive undertaking, and in that respect is similar to other media such as writing, painting, or sculpture. It may help to clarify the issue if we take an analogy from one of those other arts. Suppose that a publisher approaches a popular writer of spy thrillers and makes him an offer for a novel about a lesbian couple. The author replies that this isn’t an area in which he has any interest or experience, and he must decline. According to Cole’s logic, the author of spy thrillers is in violation of the general rule for “refusing to sell” a product, and should be sued for illegal discrimination.

But of course, the author in this hypothetical example is not committing any kind of illegal discrimination. Nor would those who came to the author’s legal defense be looking to find a “right to discriminate” within the First Amendment. They would cite First Amendment language and precedent to make the simple point that, just as the amendment protects citizens who publicly express views and ideas from being punished for what they say, it also protects people from being forced to engage in speech and expression that they do not wish to engage in. Censorship and compelled speech are both explicitly wrong and unconstitutional under any reading of the First Amendment, and Masterpiece Cakeshop is a quintessential First Amendment case. In a free society, we do not tell a creative artist—whether a writer, filmmaker, or a maker of custom-designed cakes—what the content of his or her work will be.

To make these simple points is to demolish Cole’s reductionist and one-sided treatment of Masterpiece Cakeshop v. Colorado Civil Rights Commission. One really might have expected a more sophisticated and nuanced analysis from no less an authority than the national legal director of the ACLU.

Michael Washburn
New York City

David Cole replies:

Michael Washburn accuses me of ignoring the First Amendment claim of the baker in my account of the Masterpiece Cakeshop decision. In his view, once one understands the baking of a “custom” wedding cake as expressive, it follows that the baker has a First Amendment right to refuse service to a gay couple, because baking a wedding cake for them, even if it looks exactly like a wedding cake he would make for a straight couple, will compel him to “express” support for same-sex marriage. In fact, I addressed that argument in full in my pre-decision piece [“Let Them Buy Cake, NYR, December 7, 2017]. And while Mr. Washburn apparently missed it, I also addressed that argument in my post-decision piece, “This Takes the Cake.”

The Supreme Court declined to recognize a First Amendment right on the part of businesses open to the public to discriminate on the basis of sexual orientation (or race or sex or religion), even if the business’s products or services are “expressive.” That’s what the baker sought, but the Court declined to accept that contention, and instead ruled for the baker only on the ground that the Colorado process that adjudicated his case was infected by religious bias. Justice Anthony Kennedy went out of his way to include in his decision strong language refuting any such right to discriminate founded in the First Amendment.

Mr. Washburn claims that the “expressive” character of a custom cake is what makes the baker’s claim different. As a factual matter, the couple did not, as Mr. Washburn suggests, request a specific design or message; indeed, as soon as the baker learned they sought a cake for a same-sex wedding celebration, he turned them away, refusing regardless of its design. But more importantly, as I noted in “This Takes the Cake,” neither the baker’s lawyer nor the solicitor general, representing the Trump administration, could offer a coherent way to distinguish “expressive” businesses that have a right to discriminate from those that do not. If bakers are “expressive,” so, too, are chefs, hair stylists, architects, schools and colleges, nail salons, and corporate photography studios. Should they all have the right to turn away African-Americans, or women, or Muslims, or gay people if they object to being compelled to express support for them by providing an expressive service? As the oral argument revealed, there is no stopping point to this theory—which is why the Court has rejected it when it has been asserted to justify race and sex discrimination by restaurants and law firms in the past.

Mr. Washburn’s analogy to a novelist is misguided. Writers, painters, and sculptors are generally not businesses open to the public but freelancers who enter into one-on-one contracts. Public accommodations laws do not apply to them. But once a business chooses to open its doors to the public, it is obligated to serve the public without discrimination. A painter does not have to paint for anyone in particular. But if he chooses to open a sign-painting business to the public, he can’t turn away customers because they are gay, black, or Christian.

Mr. Washburn’s error is the same one the baker’s lawyers made. The First Amendment inquiry focuses not on whether a given course of conduct is expressive or not—because virtually all conduct is expressive in some sense—but instead on whether the government is regulating the conduct because of what it expresses or regardless of what it expresses. Thus, if the government were to pass a law expressly requiring bakers to bake cakes for same-sex weddings (or indeed for opposite-sex weddings), a baker could object that the law was passed specifically to compel expression of a particular viewpoint. Such a law would be treated as a regulation of speech, and would have to satisfy stringent First Amendment scrutiny. But public accommodations laws regulate discriminatory conduct regardless of whether it is “expressive” or not. They apply equally to hardware stores and bookstores, to bakeries and hotels. They do not single out “expression” of any kind, but regulate conduct. Such laws have long been upheld against First Amendment challenges, because there is no First Amendment right to discriminate.