How Should a Committed Originalist Decide Masterpiece Cakeshop?
By Eric Segall
Next Tuesday, the Supreme
Court will hear the case of the Colorado baker who refuses to allow his
products to be used in same-sex wedding ceremonies or celebrations. Colorado
courts found that his refusal violated a state law prohibiting vendors from discriminating
on the basis of sexual orientation. The baker, Jack Phillips, claims that the
Colorado law, as applied to him, violates the First Amendment’s speech and
religion clauses. This collision between anti-discrimination laws protecting
gays and lesbians on the one hand and opponents of same-sex marriage on
religious and free speech grounds on the other hand is the latest battle in the
national culture wars.
Justices Gorsuch and Thomas both claim to be committed originalists. Since it is likely the four liberals on the Court will rule in favor of Colorado, one more vote for the State should result in its victory. How
should a committed originalist decide this case?
To
discuss the question, we first must define what it means to be a “committed
originalist.” These days, that it is no easy feat. But it is likely that most
originalists would agree with the following three propositions: 1) the meaning
of the constitutional text is fixed at the time of ratification; 2) judges
should give that meaning a primary role in constitutional interpretation; and
3) pragmatic modern concerns and consequences are not allowed to trump
discoverable original meaning (although adhering to precedent might).
Phillips
argues that Colorado’s non-discrimination law as applied to him violates the
First Amendment by abridging his right to free speech and his right to the free
exercise of religion. To resolve those claims a committed originalist would
want to know what the words of the First Amendment meant either in 1791 when it
was ratified, or in 1868, when the Fourteenth Amendment was ratified (because according
to later Supreme Court cases, the Fourteenth Amendment incorporated the First Amendment against the states, as the First Amendment itself only mentions Congress).
The State
of Colorado is not stopping Phillips from saying anything he wants at any time
or in any place on any topic. He is completely free to protest against same-sex
marriage as loudly and as often as he pleases. Additionally, according to the
facts, Phillips was never asked to place any message on the cake (he told the
plaintiffs he could not provide any cake for their wedding party, and they left
the store immediately afterwards). Instead, Phillips’ argument is that the state
is forcing him to express himself against his will because the act of making a
cake, even a generic one, for a wedding celebration forces him to express
support for that wedding.
There
is no plausible argument that the original public meaning of the word “speech” in
1787 or 1868 would have included the selling of a generic wedding cake with no message on it.
Although it is possible, as Eugene Volokh has argued,
that the founding fathers might have found certain expressive conduct to be
protected by the First Amendment, selling baked goods is not expressive conduct
unless there is an actual message on the goods. Selling a generic cake is no more
expressive than selling dinner rolls or corn chowder, and no one that
I have read is suggesting the founding fathers would have thought otherwise, even if symbolic and verbal expression were both protected “speech.”
The
original public meaning of the First Amendment was probably best summarized by
James Madison, whom Volokh quotes in his article: “The people shall not be
deprived or abridged of their right to speak, to write, or to publish their
sentiments.” Phillips is not being denied the right to do any of those things by
a state law prohibiting him from discriminating against customers on the basis
of sexual orientation.
There
are Supreme Court cases that have held that the government may not compel people
to express a message with which they disagree even if they are allowed to
protest that message at other times and in other places. Under this “compelled
speech” doctrine, the Court has struck down a state statute
requiring students to recite the pledge of allegiance, a law requiring
the sponsors of a parade to allow pro-gay rights marchers to participate in the
parade, and a law
requiring residents of New Hampshire to have license plates with the motto “live
free or die.” It is highly questionable whether these cases are consistent with
the First Amendment’s original meaning, and none of them used originalist
analysis to decipher the First Amendment (though the cases may well be justifiable on non-originalist grounds).
Nevertheless, most originalists do concede that sometimes originalism
must give way to precedent. But all of the aforementioned cases involve a fact
that is not present in Masterpiece Cakeshop. The plaintiffs in those cases were
all forced to communicate or accept a message against their will. A generic
wedding cake with no symbols or letters simply is not expressive, and it would
take a large leap from the non-originalist cases cited above to include
non-expressive behavior as protected speech. A committed originalist might accept non-originalist precedent that is on-point, but he certainly shouldn’t extend those prior
cases unnecessarily.
As
far as Phillips’ free exercise of religion claims are concerned, Colorado has
no state religious freedom restoration act, and the Supreme Court held
in Employment Division v. Smith that the free exercise clause is not violated by generally applicable laws not
intended to discriminate on the basis of religion. There is no plausible
argument that Colorado’s non-discrimination law fails that test. The Smith opinion, written by Justice
Scalia, has been criticized by some originalists. However, the better argument
is that there is little or no evidence that such exemptions were
constitutionally required as a matter of constitutional law, though legislatively granted exemptions are consistent with the Constitution's original meaning.
Phillips
claims, as does an amicus brief
filed by Professors Douglas Laycock and Thomas Berg, that as applied the
Colorado law discriminates on the basis of religion because bakers in Colorado
have been allowed to refuse to place anti-same-sex marriage messages on wedding
cakes. This factual argument is simply not supported by the record. Colorado has conceded that this
case would be different if the plaintiffs had asked Phillips to put a message
on the cake. They never did. Therefore, other examples of the application of
the law to explicit requests for messages are irrelevant, and do not show religious discrimination.
Finally,
in case one is tempted to think that, as an original matter, requiring
merchants to serve customers against their will violates their constitutional
right to do business or not with whomever they see fit (an argument not made by Phillips), one need look no further than the
Supreme Court’s unanimous decision in
the Massachusetts parade case. There, Justice Souter observed that public
accommodations laws have
As a matter of the Constitution's original meaning, Colorado is not prevented from requiring those who sell their
goods to the public to refrain from discriminating against potential customers
on the basis of sexual orientation unless those vendors are being asked to participate in expressive activity (and under the modern case law even then Colorado can win if it has a compelling interest in fighting discrimination against gays and lesbians and has used the least restrictive means to further that interest). There is no persuasive argument that the original public meaning of "speech" would have applied to a generic wedding cake with no message. Will that prevent the Supreme Court from
ruling in Phillips’ favor? Of course not. But a committed originalist should rule for the State of Colorado.
a venerable history. At common law, innkeepers, smiths, and others who ‘made profession of a public employment’ were prohibited from refusing, without good reason, to serve a customer….As one of the 19th century English judges put it, the rule was that ‘[t]he innkeeper is not to select his guests[;] [h]e has no right to say to one, you shall come into my inn, and to another you shall not, as everyone coming and conducting himself in a proper manner has a right to be received; and for this purpose innkeepers are a sort of public servants.’