{"id":11804,"date":"2019-07-10T19:45:37","date_gmt":"2019-07-10T23:45:37","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/crcl\/?p=11804"},"modified":"2024-05-13T13:50:08","modified_gmt":"2024-05-13T17:50:08","slug":"why-you-cant-sell-your-cake-and-control-it-too-distinguishing-use-from-design-in-masterpiece-cakeshop-v-colorado","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/crcl\/why-you-cant-sell-your-cake-and-control-it-too-distinguishing-use-from-design-in-masterpiece-cakeshop-v-colorado\/","title":{"rendered":"Why You Can\u2019t Sell Your Cake and Control it Too: Distinguishing Use from Design in Masterpiece Cakeshop v. Colorado"},"content":{"rendered":"

Photo Credit: Victoria Pickering<\/em><\/p>\n

By: Mark Satta<\/p>\n

On June 4, 2018, the United State Supreme Court, in a 7-2 ruling, handed down a decision in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission. <\/em>The central question was whether a baker had violated Colorado state law in refusing to make a wedding cake for a same-sex couple because of the baker\u2019s religious objections to same-sex marriage. The state of Colorado sided with the same-sex couple and concluded that the baker had violated Colorado\u2019s anti-discrimination law. The baker appealed to the Supreme Court, and the Court agreed to review his case.<\/p>\n

The Masterpiece<\/em> case gained national attention by asking the Supreme Court about how to properly respect LGBT civil rights in places of public accommodation when faced with claims of violations to religious free exercise and free speech rights. But the questions about how the Supreme Court will balance LGBT civil rights and religious freedom rights in cases like this remained unanswered. This is because the Supreme Court settled the case on another ground. The First Amendment of the United States Constitution, which protects the right to the free exercise of religion, requires that adjudicative bodies treat religious beliefs in a neutral and unbiased manner.[1]<\/a> In reviewing information about how the state of Colorado determined that the baker violated Colorado\u2019s law, the Supreme Court concluded that Colorado had acted in a biased fashion against the baker and had failed to give the baker\u2019s religious beliefs the kind of neutral treatment the Constitution required. For this reason, the Court \u201cinvalidated\u201d the Colorado Court of Appeals decision, which upheld the finding that the baker had violated Colorado\u2019s Anti-Discrimination Act. The Supreme Court overturned Colorado\u2019s ruling, but didn\u2019t provide additional guidance, instead leaving unanswered whether bakers have a Constitutional right to refuse to make cakes for same-sex weddings on religious or free speech grounds.<\/p>\n

Justice Anthony Kennedy wrote the Court\u2019s majority opinion. In his opinion he put forward two kinds of evidence for the Court\u2019s conclusion that Colorado had failed to act neutrally towards the baker\u2019s religious beliefs. First, he cited some specific comments made by members of the Colorado Civil Rights Commission during their review of the case. He concluded that these comments displayed hostility toward the baker\u2019s Christian beliefs. Second, he cited the fact that while the Colorado Civil Rights Commission concluded that the baker in the Masterpiece<\/em> case, Jack Phillips, had<\/em> violated Colorado law, the Commission had recently concluded that three other bakers hadn\u2019t<\/em> violated Colorado law when those bakers refused to make cakes which displayed specific messages opposing same-sex marriage. Kennedy claimed that in ruling differently in Jack Phillips\u2019 case from those of the other three bakers, the Colorado Civil Rights Commission had displayed unfair bias against Phillips\u2019 beliefs.<\/p>\n

Whether the Colorado Civil Rights Commission actually acted in a biased manner toward Jack Phillips is an important question, and a reasonable case can be made that the Commission\u2019s decision was unbiased.[2]<\/a> But my focus here is specifically on an argument presented in Justice Gorsuch\u2019s concurring opinion. In his concurrence, Gorsuch took the Supreme Court\u2019s conclusion that Colorado had displayed bias against the baker\u2019s religious belief in Masterpiece <\/em>a step further.<\/em> Gorsuch argued not only that Colorado failed to make a principled distinction between the case of Jack Phillips and the other three bakers, but that there was no principled way of distinguishing Phillips\u2019 case from those of the other three bakers that was consistent with the First Amendment. While the Supreme Court majority\u2019s opinion was grounded on an empirical claim that the Colorado Civil Rights Commission displayed religious bias against Phillips, Justice Gorsuch\u2019s argument is not an empirical one. Gorsuch instead offered an analytical argument that there is no legally principled way to distinguish between refusing to sell a cake that the customer intends to use to at the reception of a same-sex wedding on the one hand and refusing to sell a cake that contains an anti-same-sex marriage message as part of its design on the other. Gorsuch\u2019s argument overlooks several important distinctions between the scenario in Masterpiece<\/em> and the other three cases. This article seeks to identify and analyze those distinctions that Gorsuch could not see.<\/p>\n

Below, I attempt to make clear not only what the relevant distinctions are that Gorsuch overlooks but also how those distinctions allow for principled ways of distinguishing Masterpiece<\/em> from the other three cases in a manner that respects the First Amendment. The key distinction I make is between a business owner who seeks to retain autonomy over which<\/em> goods or services they offer versus a business owner who seeks to retain control over how<\/em> a good or service which they have sold to a customer is used<\/em> by that customer. While the bakers in the other three cases were seeking only to have a say over which items they make, the baker in Masterpiece<\/em> was seeking to control how his customers use the products he makes, and by extension, which messages the customers<\/em> go on to create with the products they\u2019ve purchased.<\/p>\n

This article is structured as follows. First, I provide additional background about the Masterpiece Cakeshop <\/em>case and the other three cases with which it was contrasted. Second, I present Justice Gorsuch\u2019s argument in his concurring opinion. Third, I respond to Gorsuch\u2019s argument by making the two distinctions that Gorsuch overlooks in comparing Phillips\u2019 case to the other three cases considered. The first key distinction is between use<\/em> and design<\/em>. The second is between context-general<\/em> and context-specific<\/em> messages. I then use these distinctions to argue that, contrary to Gorsuch\u2019s view, there are legally sound and morally principled ways of distinguishing the refusal to make a cake that a customer wants to use for a same-sex wedding and a cake that has a design that expresses a message objecting to same-sex marriage.<\/p>\n

Factual Background<\/em><\/strong><\/p>\n

In the summer of 2012, Charlie Craig and David Mullins were engaged to be married. Because same-sex marriage was not yet recognized in the state of Colorado, the couple planned to get married in Massachusetts and then hold a reception celebrating their marriage back in Colorado. While in search of a cake for their wedding reception, Craig and Mullins, along with Craig\u2019s mom Deborah Munn, went to Masterpiece Cakeshop, a bakery owned by Christian baker Jack Phillips in Lakewood, Colorado. Phillips, who sees his work as a way to honor God, had been operating his bakery for nearly twenty years at the time.[3]<\/a><\/p>\n

Craig and Mullins expressed interest in getting a cake for their wedding from Phillips. Phillips declined to make the cake, telling the couple that \u201cI\u2019ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don\u2019t make cakes for same sex weddings.\u201d[4]<\/a> The parties disagree about whether Craig and Mullins asked about getting a custom-made wedding cake (as opposed to, say, a premade cake).[5]<\/a> However, it is uncontested that Craig and Mullins did not mention anything about how they might want the cake designed.[6]<\/a> Upon Phillips\u2019 refusal, Craig and Mullins \u201cleft the shop without further discussion.\u201d[7]<\/a><\/p>\n

The following day Craig\u2019s mother called Phillips to ask why he had declined to serve her son and his fianc\u00e9.[8]<\/a> The Supreme Court opinion states that \u201cPhillips explained that he does not create wedding cakes for same-sex marriages because of his religious opposition to same-sex marriage.\u201d[9]<\/a> It is Phillips\u2019 view that same-sex marriage \u201cgoes against the teachings of the Bible.\u201d[10]<\/a> (The record indicates that Craig\u2019s mother also may have asked if she could purchase a cake for her son\u2019s reception. This request appears also to have been refused.)[11]<\/a><\/p>\n

At the time Phillips made these refusals, as now, Colorado\u2019s Anti-Discrimination Act prohibits discrimination on the basis of sexual orientation in places of public accommodation, such as a bakery.[12]<\/a> Craig and Mullins decided to file a discrimination complaint in Colorado against Phillips, stating that they had been denied \u201cfull and equal service\u201d due to their sexual orientation.[13]<\/a> The Colorado Civil Rights Division opened an investigation. The investigator assigned found a half-dozen other instances of Phillips \u201cturning away customers on the basis of their sexual orientation, stating that he could not create a cake for a same-sex wedding ceremony or reception.\u201d[14]<\/a> This included refusing to sell cupcakes to a same-sex couple for their recommitment ceremony because the bakery \u201chad a policy of not selling baked goods to same-sex couples for this type of event.\u201d[15]<\/a> Based on these findings, a Colorado Administrative Law Judge found in favor of Craig and Mullins and ruled that \u201cPhillips\u2019 actions constituted prohibited discrimination.\u201d[16]<\/a> Phillips appealed this ruling to the Colorado Civil Rights Commission.<\/p>\n

There was an approximately five-month period between the Administrative Law Judge\u2019s determination and when the Colorado Civil Rights Commission heard Phillips\u2019 appeal from that decision.[17]<\/a> During that period, a man named William Jack went to three different bakeries in Colorado and made requests for two different custom-designed cakes. The first cake was designed to look like an open Bible with the words \u201cGod hates sin. Psalm 45:7\u201d on one side and \u201cHomosexuality is a detestable sin. Leviticus 18:2\u201d on the other.[18]<\/a> The second cake was also designed to look like an open Bible. On that cake Jack wanted an image of two grooms holding hands with a red \u201cX\u201d over the image along with the words \u201cGod loves sinners\u201d and \u201cWhile we were yet sinners Christ died for us. Romans 5:8.\u201d[19]<\/a><\/p>\n

The first bakery owner told Jack she would sell him Bible-shaped cakes but wouldn\u2019t include the additional words or images requested because her bakery \u201cdoes not discriminate\u201d and \u201caccepts all humans.\u201d[20]<\/a> The second bakery owner told Jack that he \u201chad done open Bibles and books many times and that they look amazing\u201d but would not make a cake with the specific messages, which the baker described as \u201chateful.\u201d[21]<\/a> The third bakery, like the first, said it would bake the cakes, but wouldn\u2019t include the messages.[22]<\/a> In addition to protecting against discrimination on the basis of sexual orientation, Colorado\u2019s Anti-Discrimination Act (CADA) also protects against discrimination in places of public accommodation on the basis of religious creed. On this basis, Jack filed his own complaint with the state of Colorado, claiming discrimination based on religious belief.[23]<\/a><\/p>\n

In examining Jack\u2019s claim, the Colorado Civil Rights Division \u201cobserved that the bakeries regularly produced cakes and other baked goods with Christian symbols and had denied other customers\u2019 requests for designs demeaning people whose dignity CADA protects.\u201d[24]<\/a> The Division found no probable cause for a violation of the Act, and the Colorado Civil Rights Commission upheld this finding.[25]<\/a><\/p>\n

While that marked the end of William Jack\u2019s case, it did not mark the end of Jack Phillips\u2019.[26]<\/a> After going through two appeals, both of which resulted in rulings in favor of Craig and Mullins, the Masterpiece<\/em> case made it to the Supreme Court, where the Court ruled that the Colorado Civil Rights Commission had displayed a lack of neutrality towards Phillips\u2019 religious beliefs and that as a result the ruling against Phillips \u201cmust be invalidated.\u201d[27]<\/a> In the majority\u2019s opinion, the Court held only that the particular way in which the Colorado Civil Rights Commission and Court of Appeals in fact distinguished Craig and Mullin\u2019s case from Jack\u2019s three cases failed to use a \u201cprincipled rationale\u201d and sent \u201ca signal of disapproval of Phillips\u2019 religious beliefs.\u201d[28]<\/a> But as Justice Elena Kagan noted in her concurrence, even if Colorado failed to make an appropriately neutral distinction between the cases, this does not mean that a neutral, principled distinction was unavailable.[29]<\/a><\/p>\n

Gorsuch\u2019s Argument<\/em> <\/strong><\/p>\n

Gorsuch rejected Kagan\u2019s claim in his concurring opinion, which he devoted to arguing that there was no principled way that Colorado could<\/em> have distinguished the Masterpiece<\/em> case from the other three cases that would have been \u201cconsistent with the First Amendment\u201d and that he did not see a way to \u201crescue the [Colorado Civil Rights] Commission from its error.\u201d[30]<\/a> Gorsuch\u2019s view is that while Craig and Mullins and Jack all possessed<\/em> protected characteristics (sexual orientation in the case of Craig and Mullins and religious belief in the case of Jack), none of them were denied service because<\/em> of their protected characteristics and that as a result, none of the denials of service were discriminatory.<\/p>\n

His argument goes like this. Both religious creed and sexual orientation are protected traits under CADA.[31]<\/a> The three bakers who denied providing Jack with a particular item (a cake with religious messages opposing same-sex marriage) would have denied that kind of service to anyone who asked for such an item, regardless of their religious belief<\/em>.[32]<\/a> This is true despite the fact that most\u2014but not necessarily all\u2014people who would ask for such an item likely will share a particular set of religious beliefs.[33]<\/a> That the denial was not due to Jack\u2019s religious beliefs is further evidenced by the fact that these bakers regularly provided other items with Christian themes to Christians customers.<\/p>\n

In the same way, Phillips, who denied providing Craig and Mullins with a particular item (a cake for a same-sex wedding), would have denied that kind of service to anyone who asked for such an item, regardless of their sexual orientation<\/em>.[34]<\/a> This is true despite the fact that most\u2014but not necessarily all\u2014people who would ask for such an item likely will share a particular orientation.<\/em>[35]<\/a> (Gorsuch provides the example of Phillips turning down the request of Craig\u2019s mom for a cake for her son.[36]<\/a>) Analogous to the other three bakers\u2019 cases, that the denial was not due to Jacks\u2019 religious beliefs is further evidenced by the fact that Phillips was willing to sell other items to customers in same-sex relationships. Gorsuch concludes this portion of his argument with the claim that \u201cit was the kind of cake, not the kind of customer, that mattered to the bakers.\u201d[37]<\/a><\/p>\n

To understand Gorsuch\u2019s view in full, it is important to note that he sees a wedding cake as sending a message by virtue of being a wedding cake, and therefore that a cake for a same-sex wedding sends a specific message by virtue of being a cake for a same-sex wedding. Thus, for Gorsuch, there is a significant and relevant category distinction between \u201cwedding cake\u201d and \u201csame-sex wedding cake.\u201d Gorsuch writes that \u201c[l]ike an emblem or flag, a cake for a same-sex wedding is a symbol that serves as a short cut from mind to mind, signifying approval of a specific system, idea, or institution\u201d and that \u201c[i]t is precisely that approval that Mr. Phillips intended to withhold in keeping with his religious faith.\u201d[38]<\/a> While Gorsuch\u2019s argument is not without some force, it is mistaken.<\/p>\n

Kind of Use Versus Kind of Design<\/em><\/strong><\/p>\n

The short version of the first part of my argument in response to Gorsuch is this: when Gorsuch claimed that \u201cit was the kind of cake, not the kind of customer, that mattered to the bakers\u201d what Gorsuch failed to realize (or at least failed to state) was that he was equivocating on the word \u201ckind.\u201d In Phillips\u2019 case, when Gorsuch refers to the \u201ckind of cake\u201d Phillips was asked to make, he is talking about kind in a functional way\u2014i.e. what kind of use<\/em> the cake was intended for. This is evidenced by Gorsuch\u2019s view that the salient feature of the cake in question being that it is to be used for a same-sex wedding. In the other three cases, when Gorsuch refers to the \u201ckind of cake\u201d the bakers were asked to make, he is talking about kind in a structural or design-based way\u2014i.e. what kind of form<\/em> and decoration<\/em> the cake would have. This is evidenced by Gorsuch\u2019s focus on the nature of the cake\u2019s design (e.g. it\u2019s shape, inscriptions, etc.) And this distinction between kinds is relevant because to withhold service in the former case is to seek to police the behavior of one\u2019s customers via seeking to control what one\u2019s product would be used for (which in Phillips\u2019 case involves policing expression of the customers\u2019 sexual orientation), while the latter case is merely an attempt to retain control over what kind of objects one creates and sells in the first place. As a general legal principle, sellers are given wide latitude to control what products they sell, but relatively little control over what their customers do with their products.<\/p>\n

Gorsuch treated as inexplicable how one could distinguish Phillips’ denial of service to Craig and Mullins from Jack\u2019s cases. Even before the Supreme Court heard the arguments in this case, the possibility of Gorsuch\u2019s mistake had been identified and preemptively responded to. In an New York Times<\/em> Op-Ed, philosopher, John Corvino, compared Jack Phillip\u2019s case to the case of Marjorie Silva, one of the three bakers who was willing to sell William Jack a case but refused to include his message in opposition to same-sex marriage. Corvino wrote:<\/p>\n

\u201cIt is tempting to describe Marjorie Silva\u2019s Bible-cake refusal as the moral mirror-image of Jack Phillip\u2019s wedding-cake refusal: Neither baker was willing to assist in conveying a message to which they were morally opposed.\u201d[39]<\/a><\/p>\n

However, Corvino also succinctly supplies the flaw with this line of reasoning. He continues writing the following.<\/p>\n

\u201cBut that\u2019s not quite right. For recall that Silva was willing to sell the customer a Bible-shaped cake and even to provide an icing bag, knowing full well what the customer intended to write. She was willing to sell this customer the very same items that she would sell to any other customer; what he did with them after leaving her store was, quite literally, none of her business.”<\/p>\n

“Therein lies the crucial difference between the cases: Silva\u2019s objection was about what she sold; a design-based objection. Phillips\u2019s objection was about to whom it was sold; a user-based objection. The gay couple never even had the opportunity to discuss designs with Phillips, because the baker made it immediately clear that he would not sell them any wedding cake at all. Indeed, Masterpiece once even refused a cupcake order to lesbians upon learning that they were for the couple\u2019s commitment ceremony.\u201d[40]<\/a><\/p>\n

So Gorsuch need not have been at a loss as to how to distinguish the cases. An answer had already been supplied. But since the answer in brief (either because Gorsuch was unaware of the response or unconvinced by it) was not enough to sway the Justice, in this paper I seek to provide a more robust defense of the position that a relevant distinction between the Masterpiece<\/em> case and the other three cases exist. With this in mind, I\u2019ll offer some examples meant to help illuminate the significance of the difference between a kind of use and a kind of design.<\/p>\n

Before turning to those examples, it will be useful to have some information about the wedding cakes that Phillips makes at Masterpiece Cakeshop. If you go to the website for Masterpiece Cakeshop, you can click on a tab that takes you to a sub-section of Phillips\u2019 website that is devoted to wedding cakes.[41]<\/a> Phillips has thirty-three photos on a loop on that page, one of which is a picture of him working on a cake and the rest of which are pictures of wedding cakes. A few of the cakes have initials frosted onto them and two of them have figures depicting what looks like a heterosexual couple on them, but the majority lack any unique identifying markers. Most of the cakes have flowers, but the shapes, how many tiers, the arrangement of the flowers, the way they are frosted, and the colors they use all vary from cake to cake. Thus, if Phillips\u2019 website is indicative of his work, the majority of his wedding cakes, if custom at all, are custom only to the extent that the colors, shapes, arrangements, etc. vary.<\/p>\n

Scenario 1: The Same Cake<\/em><\/p>\n

Imagine the following hypothetical. Charlie Craig goes to an opposite-sex wedding of his friends, Bianca and James. He notices the cake at their reception and thinks it\u2019s beautiful. Craig and Bianca have always had the same favorite color: a very specific shade of green. Bianca and James\u2019 wedding cake implements beautifully this shade of green. Craig is even more impressed when he tastes the cake. He asks Bianca and James where they got the cake. They tell him Masterpiece Cakeshop. Fast-forward a few years and Craig is now planning his own wedding with Dave Mullins. He loved the cake at Bianca and James\u2019 wedding so much that he asks if they mind if he gets the same exact cake for his reception. Bianca and James heartily endorse the plan. Craig took pictures of the cake at Bianca and James\u2019 wedding, so he brings the pictures with him to Masterpiece Cakeshop and asks Jack Phillips to make him a cake just like the one he made for James and Bianca\u2014i.e. just like the cake in the picture. As luck would have it, that particular cake had been wildly popular and Phillips had used the same design to decorate cakes for a few other weddings.<\/p>\n

We could further hypothesize that Craig doesn\u2019t mention what the cake is for, that Phillips never asks and that Craig and Mullins get their cake, and that everyone lives happily ever after. But whether Phillips makes Craig the cake or not isn\u2019t the point of this scenario. (Nor is the fact that you may feel it is a little tacky for someone to get the same wedding cake as their friend.) Rather, the point is that Craig can go into the store and ask for a cake \u201cjust like the one you made before.\u201d Craig can give Phillips a picture of an item that Phillips previously made and sold and say \u201cI want something as similar to that as you can recreate.\u201d<\/p>\n

But William Jack cannot do that. Jack cannot go into any of the three bakeries and show them a picture of their own work and say, \u201cplease try to recreate this for me; it was a huge hit last time you did it.\u201d This is because the items Jack wanted are items that these bakers never had and never would make in the first place. If the bakers had made such items before and only turned Jack down because he was a Christian, that of course, would be discrimination based on religious creed. But that is not what happened. There\u2019s a relevant difference between the cases and it seems sensible to draw a First Amendment line between the ability to refuse to make a product with a particular design versus the ability to refuse to make product that you\u2019ve made before only because you don\u2019t approve of what the customer plans to do with the item.<\/p>\n

Scenario 2: The Secret Celebration<\/em><\/p>\n

Imagine now that Craig and Mullins chose to forego a wedding reception in order to help cover the costs of traveling to and staying in Massachusetts to get married, but Craig\u2019s mother, Deb Munn, decides she wants to throw the couple a surprise wedding reception. Deb goes to Masterpiece Cakeshop to request a cake. She tells Phillips that the occasion of celebration is a secret and states that she would rather keep it a secret even from Phillips (whom she has no idea has a policy of not making cakes for same-sex weddings). Phillips agrees. They discuss what kind of shape, colors, filling, frosting, etc. she wants for the cake. Phillips makes the cake and all live happily ever after.<\/p>\n

Imagine that William Jack also has a proclivity for surprise events. He is planning to have a biblical vice themed party for his church friends but wants the party and its theme to be a surprise. (And who would want to ruin the fun of such a surprise gathering!) Jack comes up with the specific designs for the cakes he wants at the party, including the Bible-shaped cakes with scriptural quotations he interprets as condemning homosexuality and the symbol of the grooms with a red X over top of them. He begins going around to bakeries to find someone to make the cakes. He is disheartened to encounter several bakers who won\u2019t make him the cakes once he explains the design. He insists that they cannot make a full determination without knowing what kind of event the cakes are for, but each baker tells him in response that they\u2019re not trying to control what kind of parties he has or what messages he chooses to send, it\u2019s just that they don\u2019t want to make a cake with that kind of design because of the message they would be creating via the design of the cake itself.<\/p>\n

In the case of Craig and Mullins, Phillips doesn\u2019t object to what he has been asked to make; he\u2019s objecting only to what the customer plans to do with it. But in the other three cases, the bakers are objecting because they are being asked to make an item they simply do not sell.<\/p>\n

The difference between kind of use and kind of design on its own is grounds for making a principled distinction between the Masterpiece<\/em> case and the other cases. Gorsuch charged Colorado\u2019s Commission of Civil Rights with treating like cases unalike due to the personal preferences of the members of the Commission, but the distinction between use and design shows that the cases were relevantly dissimilar in the first place. Because there was a relevant difference between the cases that Colorado could appeal to in generating different outcomes, it is a mistake to conclude that Colorado\u2019s different rulings among the cake cases must show bias.<\/p>\n

Context-General versus Context-Specific Messages<\/em><\/strong><\/p>\n

The difference between use and design tracks a second important difference between the two sets of cases discussed by Gorsuch: the difference between what I\u2019m calling context-general<\/em> and context-specific<\/em> messages. All messages are to some degree context-sensitive, yet there are some mediums that will carry the same message across contexts more readily than others. By a context-general message<\/em>, I mean a message that, within a given society, is likely to be understood and retained across a large number of contexts. By a context-specific message<\/em>, I mean a message that is likely to change its meaning and be perceived as sending a different message with even subtle changes in context. In order to further illuminate this distinction and its relevance, let\u2019s turn to a third scenario. This third scenario builds upon the distinction between kinds of use and kind of design already examined.<\/p>\n

Scenario 3: The \u201cCake Swap\u201d Scenario<\/em><\/p>\n

Imagine two friends, Leon and Satesh. Leon and Satesh have been best friends ever since they were kids. Both have an artistic streak, and their respect for and enjoyment of one another\u2019s taste is part of what\u2019s kept their friendship strong over the years. Leon and Satesh are both engaged to be married. Leon is in an different-sex relationship. Satesh is in a same-sex relationship. The two friends are competitive and decide to have a competition to see who can design the better wedding cake for their respective receptions. However, knowing that taste is subjective they realize there is a chance that they may disagree over which cake is \u201cbetter.\u201d They decide that if it turns out that both of them think, upon seeing the design for the other one\u2019s cake, that the other\u2019s cake is better, they will swap wedding cakes. Their very gracious and loving fianc\u00e9s (neither of whom is particularly concerned about the wedding cake) both agree to this plan as well.<\/p>\n

Leon, unbeknownst to him, goes to a bakery where the baker has a policy of not making cakes for same-sex weddings. Leon works with the baker to come up with a fabulous design for his wedding cake. Satesh goes to a baker who is happy to make cakes for same-sex weddings. Satesh and his baker also work together to come up with a fabulous design for his wedding cake. To both Leon\u2019s and Satesh\u2019s surprise, upon comparing designs, they find that they like the other\u2019s cake design better. They decide to do a swap. In a fun gesture of friendship, they pay for one another\u2019s cakes and only inform the respective bakers they\u2019ve been working with that they want the cake made for a different day and delivered to a different venue.<\/p>\n

On the day of Satesh\u2019s same-sex wedding, the baker with whom Leon has been working shows up at the wedding venue with the wedding cake. The baker gives Leon the cake and Leon pays him in full for the cake. On the way out, the baker notices that the wedding programs say \u201cCongratulations Satesh and Jim\u201d with a picture of the two grooms. Realizing that this is a same-sex wedding, the baker returns and says he wants the cake back and is willing to refund the money because the baker doesn\u2019t want to condone any messages supporting same-sex marriage.<\/p>\n

Note that there is no analogous scenario we can create dealing with a cake that has a design as specific as William Jack\u2019s. Jack\u2019s cakes, with their writing and symbols, are not the sort of thing that you could just swap out at one party for another; nor are they the sort of cakes one could swap out at one religious event for another. This is in part because the very specific designs in Jack\u2019s case conveys a message that would be retained across contexts in a way that a generic wedding cake does not. Change the venue a wedding cake is at, and you change the set of messages it\u2019s likely to send (that is, if you think it\u2019s sending any messages at all to begin with). And even within the context of a specific wedding reception, a generic wedding cake is such that it might still convey many different messages. But in a case like Jack\u2019s, with cakes that contain explicit written messages and non-linguistic symbols designed to convey a very specific meaning, context plays much less of a role in determining what message such cakes will send and to whom the messages can reasonably be attributed.<\/p>\n

Because of the specific messages in the design of the cakes like the ones requested by Jack, a baker who makes such a cake literally creates<\/em> a message in a way that Phillips does not when he makes a largely generic wedding cake (for a same-sex wedding or otherwise). That a generically designed wedding cake can be successfully swapped across events in a way that a cake with a very specific design like Jack\u2019s normally can\u2019t be shows that the ways in which the two types of cake carry their messages are relevantly different. This difference is the difference between context-general meaning versus a context-specific meaning.<\/p>\n

If a wedding cake is put in a storefront window the primary message the cake is likely to convey is that wedding cakes are for sale at this establishment. If it is a typical wedding cake, it is not likely to convey anything about the proprietor\u2019s views on same-sex marriage. Then, depending on who purchases the cake and what use the purchasers put the cake to, the messages the cake sends will likely change at over time. This additional meaning is created by what the customer<\/em> chooses to do with the cake and so most reasonable observers won\u2019t attribute those subsequent messages to the cake\u2019s designer.<\/p>\n

But things are different with cakes that have text or symbols designed to convey messages across contexts (like a red X over a pair of grooms). A cake with that design will convey a message disapproving of same-sex marriage whether it\u2019s in the storefront or used at any other venue. The message of such a cake is much more cross-contextual because it is embedded within the cake\u2019s design. As a result, the cake\u2019s message is quite literally created by whomever creates the cake, and as a result, it is more reasonably attributed to the cake\u2019s maker, even if the maker disavows the message while creating it. But that is not so with a wedding cake lacking this sort of specific design. The creator of the cake which does not contain a context-general message has made an object capable of meaning many different things depending on the context in which it\u2019s put to use.<\/p>\n

Gorsuch writes that \u201c[t]o suggest that cakes with words convey a message but cakes without words do not . . . is irrational\u201d and that no one can \u201creasonably doubt that a wedding cake without words conveys a message.\u201d The scenarios we\u2019ve covered help provide us with the tools needed to see that this argument is a straw man. The key is not the presence of words or symbols themselves. Rather, it is that these words and symbols make the message inherent in the design of the cake and something that will be retained across contexts.<\/p>\n

The scenario of Leon and Satesh\u2019s weddings helps illuminate the way in which the context-general messages of most weddings cake can and will change depending on the context in a way that context-specific messages created using text or context-general symbols like a cross or red \u201cX\u201d do not. The cake swap scenario also reinforces how seeking to control the kind of use<\/em> a cake is put to leads to seeking to police the behavior of the customer in a way that seeking to control the kind of design does not. In the scenario above, the baker is seeking to police Satesh and his fianc\u00e9\u2019s expression of their devotion to one another in a manner that the baker wouldn\u2019t try to do if Satesh and his fianc\u00e9 were straight and entering into opposite-sex marriages. The message the baker sends is that \u201cI\u2019ll only make you this item that I\u2019m willing to make for others if you forego using it to do something intimately tied to your minority sexual orientation.\u201d To do that is to discriminate on grounds of sexual orientation.<\/p>\n

Once again there is no such analog with William Jack\u2019s Christian beliefs. The refusals of the three bakers in his cases weren\u2019t predicated upon what Jack was going to do with the cakes. In fact, nowhere in Gorsuch\u2019s concurrence or any of the other Justices\u2019 discussions of Jack and his cakes do we learn what he wanted to do with the cakes. This for the obvious reason that the refusals to serve Jack weren\u2019t related to what Jack wanted to do with the cakes. They were rooted in the particular good that Jack wanted, which was defined in part by the specific design of the item Jack wanted.<\/p>\n

Of course, we can alter Jack\u2019s case to make it look more like the cake swap scenario. Let\u2019s say the bakers were willing to make cakes with Jack\u2019s design on them when they believed the cakes would be used for a Christian event but asked to call off their exchange after they found out that the cakes were actually going to be used at a Muslim event. It\u2019s clear that in such a case the bakers are engaging in illegal discrimination on the basis of religion. But that fictitious scenario is much more analogous to the Masterpiece<\/em> case than Jack\u2019s actual cases. That\u2019s because in this fictitious scenario, it\u2019s the same cake being used for a similar event, with the sole salient difference between the events being the protected class of the persons for whom the event is centered around. But once again it is only after we\u2019ve altered the details of Jack\u2019s case that we can create a hypothetical that looks truly analogous to the Masterpiece <\/em>case, undercutting Gorsuch\u2019s claim that there is no principled way to distinguish Masterpiece-<\/em>type cases from cases like Jack\u2019s.<\/p>\n

The \u201cBecause of\u201d Relation and Rejecting Partial Discrimination<\/em><\/strong><\/p>\n

One might be willing to acknowledge the relevance of the distinction between kind of use and kind of design as well as the distinction between context-general and context-specific messages yet still protest that we shouldn\u2019t conclude that Phillips illegally discriminated on grounds of sexual orientation. In making this kind of argument, two points from Gorsuch\u2019s concurrence would be salient. First, one might point out that in the cake swap scenario, the customer\u2014i.e. purchaser of the cake\u2014wasn\u2019t discriminated against because of his own sexual orientation. Rather, it was the fact that the straight customer, Leon, wanted to use the cake to celebrate his friends\u2019 same-sex wedding. Similarly, as Gorsuch went out of his way to point out, Phillips would turn down even a straight customer who asked to purchase a cake for a same-sex wedding, as evidenced by Phillips\u2019 refusal to let Craig\u2019s mother buy a cake for her son\u2019s wedding. Second, and relatedly, one might point out that there is evidence that Phillips wasn\u2019t refusing to sell the wedding cake because of<\/em> anyone\u2019s sexual orientation because Phillips is willing to sell a number of other products to LGBT people.<\/p>\n

The first argument, that Phillips\u2019 refusal is not sexual-orientation discrimination because he refuses to sell a cake to anyone <\/em>regardless of their orientation if they want to use the cake to celebrate a same-sex wedding, highlights that this is a clear case of a business owner trying to police the use of his products in a very specific way that impacts only those in same-sex relationships or those supporting others in same-sex relationships. We don\u2019t ordinarily allow business owners to engage in this sort of policing of the activities of their customers, especially when such policing is limited to activities associated with a statutorily protected trait like sexual orientation.<\/p>\n

The second argument requires an analysis of the text of Colorado\u2019s Anti-Discrimination Act (CADA). The sort of discrimination-by-proxy that occurs in the case of the refusal to sell a cake to a straight parent who wants to use the cake to celebrate their child\u2019s same-sex wedding seems to be part of what\u2019s prohibited on the face of the Act. The relevant portion of CADA reads as follows:<\/p>\n

\u201cIt is a discriminatory practice and unlawful for a person, directly or indirectly<\/em>, to refuse, withhold from, or deny to an individual or a group, because of <\/em>disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment<\/em> of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.\u201d[42]<\/a><\/p>\n

Stripping this text down to its relevant portions for the matter at hand, we see that it is deemed discriminatory and unlawful for a person operating a place of public accommodation, like a bakery, to deny, directly or indirectly, the full and equal enjoyment of goods (including cakes) because of sexual orientation. It does not state that the denial must be because of the sexual orientation of the individual or group so denied. Rather, it states only that the denial needs to be because of<\/em> sexual orientation. When Jack Phillips denies Deborah Munn a cake for her son\u2019s wedding, this is still because of sexual orientation\u2014just that of her son. Were her son straight and marrying a woman, as straight men typically do when they get married, Phillips wouldn\u2019t have denied the request.<\/p>\n

One might be tempted to offer the response that, despite the language of the statute itself, the best interpretation of the statute is that it refers to the protected characteristics of the customers themselves. Our fourth and final scenario shows why this is both normatively a bad policy idea and legally unlikely to be what the legislators had in mind.<\/p>\n

Scenario 4: A Child\u2019s Birthday <\/em><\/p>\n

A white woman comes into a bakery with her black son. They are shopping for a cake for his tenth birthday. The son loves superheroes and wants a superhero-themed party and superhero-themed cake for his party. The mother chose this bakery because it has a reputation for doing great custom-design superhero cakes. The boy and mother came up with a design they wanted for the cake that was similar to designs the baker had done before. The mother asks the baker if she can order such a cake. The baker, noticing the boy, says he\u2019s very sorry, but that due to his religious beliefs he doesn\u2019t serve black customers.<\/p>\n

If the woman sues the baker on the ground that he discriminated based on race, it would be a lousy defense for the baker to claim it\u2019s not discrimination based on race because he is willing to deny service to a potential customer of any race (like the white mother) if they plan on using the cake for a celebration for a black person.[43]<\/a> Given the widespread repudiation of race-based discrimination, someone interested in defending Gorsuch\u2019s position might wish to argue that the relevant difference is race versus sexual orientation. But to do so is to ignore the text of CADA, which protects racial and sexual orientation discrimination in the same manner.<\/p>\n

One might also wish to point out that a difference here is that the baker in this scenario refuses to serve customers who want to use cakes to celebrate black persons full stop, while in Phillips case it\u2019s only a refusal to use cakes to celebrate same-sex weddings, which are only a subset of the services non-straight customers seek out. There are two responses to this. First of all, partial discrimination is still discrimination. The standard Colorado calls for is full and equal<\/em>. Second, we could modify the scenario such that the baker only refuses to make cakes for the birthday parties of black people but will otherwise serve them. Even such outlier and irrational religious views like being religiously opposed to selling black people birthday cakes needs to be treated neutrally for legal purposes. It does not matter how odd or wrong-headed the judges might think the views are.[44]<\/a> Thus, just as a baker who refuses to serve birthday cakes to black customers is discriminating on the basis of race, even if he otherwise serves black customers, so too a baker who refuses to serve wedding cakes to gay customers is discriminating on the basis of sexual orientation, even if he otherwise serves gay customers.[45]<\/a><\/p>\n

Conclusion<\/em><\/strong><\/p>\n

When I first began writing this article, Jack Phillips was suing the state of Colorado on the grounds that the state showed bias against his religion.[46]<\/a> His case was partially grounded in claims that the Colorado Civil Rights Commission treated him unfairly because they ruled differently in the cases of the other three bakers than in his own case. While Phillips\u2019 case has since settled, the underlying issue remains.[47]<\/a> What I hope this article has made clear is that the different outcomes in these cases do not indicate unfair treatment from the Commission. Rather the Commission correctly identified legally and morally relevant differences between the cases and applied their principles consistently. While both wedding cakes and cakes with specific text and words can convey messages, they convey messages in different ways. A baker has a right to control the context-specific messages they design right into the substance of a cake itself, but that does not give bakers the right to try to control what messages their customers might bring to those cakes based on how the customer uses those cakes. This is especially true when the attempts to employ such control revolve around seeking to limit the expression of rights given to members of a protected class.<\/p>\n

In closing, it is worth noting that the scenarios presented here serve not only to rebut Gorsuch\u2019s conclusion that there is no principle distinction that can be made between a case like Masterpiece<\/em> and the cases of William Jack, but also provide us with principled reason to favor protection against the creation of content-specific messages like Jack\u2019s cases but not context-general messages like Craig and Mullin\u2019s wedding cake. This is because with goods that lend themselves to context-general messages what is created is a conduit that allows others to use the goods to send messages of their own choosing. The speech more readily is viewed as being that of the purchasers only. But in the case of goods containing context-specific messages, in creating the message itself, it is more natural to associate the specific message with the creator of the good. Thus, Gorsuch\u2019s pessimism about a principled distinction between Masterpiece<\/em> and the Jack cases is doubly mistaken.[48]<\/a><\/p>\n

 <\/p>\n

[1]<\/a> See, e.g.<\/em>, Engel v. Vitale, 370 U.S. 421, 443 (1962).<\/p>\n

[2]<\/a> See <\/em>Bernard Bell,<\/em> \u201cA Lemon Cake: Ascribing Religious Motivation in Administrative Adjudications \u2014 A Comment on Masterpiece Cakeshop (Part II).\u201d Yale J. on Reg.: Notice and Comment (June 20, 2018) http:\/\/yalejreg.com\/nc\/a-lemon-cake-ascribing-religious-motivation-in-administrative-adjudications-a-comment-on-masterpiece-cakeshop-part-ii\/<\/a>; see also<\/em>, Mark Satta, \u201cMasterpiece Cakeshop: <\/em>A Hostile Interpretation of the Colorado Civil Rights Commission.\u201d Harv. C.R.-C.L. L. Rev.: Amicus (April 12, 2019) https:\/\/journals.law.harvard.edu\/crcl\/masterpiece-cakeshop-a-hostile-interpretation-of-the-colorado-civil-rights-commission\/<\/a>.<\/p>\n

[3]<\/a> Masterpiece Cakeshop<\/em>, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1724 (2018).<\/p>\n

[4]<\/a> Id<\/em>.<\/p>\n

[5]<\/a> Masterpiece<\/em>, 138 S. Ct. at 1740 (Thomas, J., concurring).<\/p>\n

[6]<\/a> Masterpiece<\/em>, 138 S. Ct. at 1724.<\/p>\n

[7]<\/a> Id.<\/em><\/p>\n

[8]<\/a> Id.<\/em><\/p>\n

[9]<\/a> Id.<\/em><\/p>\n

[10]<\/a> Id.<\/em><\/p>\n

[11]<\/a> Masterpiece<\/em>, 138 S. Ct. at 1736 (Gorsuch, J., concurring).<\/p>\n

[12]<\/a> Colo. Rev. Stat. \u00a7 24\u201334\u2013601(2)(a) (2017). Phillips doesn\u2019t deny the view of Colorado and the Supreme Court that Masterpiece Cakeshop is a place of public accommodation. See Masterpiece<\/em>, 138 S. Ct. at 1725.<\/p>\n

[13]<\/a> Id.<\/em><\/p>\n

[14]<\/a> Id.<\/em><\/p>\n

[15]<\/a> Id.<\/em><\/p>\n

[16]<\/a> Id.<\/em><\/p>\n

[17]<\/a> Masterpiece<\/em>, 138 S. Ct. at 1749 (Ginsberg, J., dissenting).<\/p>\n

[18]<\/a> Id.<\/em><\/p>\n

[19]<\/a> Id.<\/em><\/p>\n

[20]<\/a> Id.<\/em><\/p>\n

[21]<\/a> Id.<\/em><\/p>\n

[22]<\/a> Id.<\/em><\/p>\n

[23]<\/a> Id.<\/em><\/p>\n

[24]<\/a> Id.<\/em><\/p>\n

[25]<\/a> Id.<\/em><\/p>\n

[26]<\/a> The fact that the surname of one party of interest \u201cJack\u201d is the forename of another is inconvenient. I\u2019ve sought to address this by never addressing either party by first name alone. Thus, \u201cJack\u201d in isolation will always refer to William Jack in this paper, not Jack Phillips<\/p>\n

[27]<\/a> Masterpiece<\/em>, 138 S. Ct. at 1732.<\/p>\n

[28]<\/a> Id.<\/em> at 1731.<\/p>\n

[29]<\/a> Masterpiece<\/em>, 138 S. Ct. at 1733 (Kagan, J., concurring). My own view is that the Commission and Court of Appeals did in fact appeal to a principled difference between the cases and that the Supreme Court interpreted the rationale given by these adjudicative bodies uncharitably in reaching their conclusion that these rulings displayed a lack of neutrality. But how one comes out on that matter is largely irrelevant to the analysis that follows.<\/p>\n

[30]<\/a> Masterpiece<\/em>, 138 S. Ct. at 1734 (Gorsuch, J., concurring).<\/p>\n

[31]<\/a> Id. <\/em>at 1735.<\/p>\n

[32]<\/a> Id. <\/em>at 1735\u201336.<\/p>\n

[33]<\/a> Id. <\/em><\/p>\n

[34]<\/a> Id.<\/em><\/p>\n

[35]<\/a> Or at least be comprised of the set of individuals who possess a non-dominant sexual orientation\u2014i.e. are not heterosexual.<\/p>\n

[36]<\/a> Id.<\/em><\/p>\n

[37]<\/a> Id.<\/em> at 1736.<\/p>\n

[38]<\/a> Id.<\/em> at 1738 (internal quotations and citations omitted).<\/p>\n

[39]<\/a> Corvino, John. \u201cDrawing a Line in the \u2018Gay Wedding Cake\u2019 Case.\u201d New York Times<\/em>, posted on Nov. 27, 2017 at https:\/\/www.nytimes.com\/2017\/11\/27\/opinion\/gay-wedding-cake.html<\/a>.<\/p>\n

[40]<\/a> Id.<\/em><\/p>\n

[41]<\/a> The following description reflects what Phillips\u2019 website looked like on January 14, 2019 at http:\/\/masterpiececakes.com\/wedding-cakes\/<\/a>. Since the website may change in the future, readers are welcome to check out this permalink which will retain an example of what the site looked like on January 14, 2019: https:\/\/perma.cc\/73ZN-LXYJ<\/a>.<\/p>\n

[42]<\/a> Colo. Rev. Stat. \u00a724\u201334\u2013601(2)(a)(2017) (emphasis added).<\/p>\n

[43]<\/a> While I think this is an instance where we can learn something useful about discrimination against gay people (and other people who identify as having a sexual orientation other than straight) by thinking about race-based discrimination, I don\u2019t mean to suggest that the two types of discrimination are analogous in all relevant respects. The history and nature of oppression against racial minorities differs from the nature of history and oppression of gay people. And of course each individual\u2019s story of oppression or discrimination due to marginalized aspects of their identifies will differ in important ways from all other such stories. See, e.g.<\/em>, Trina Grillo and Stephanie M. Wilderman, \u201cObscuring the Importance of Race: The Implication of Making Comparisons Between Racism and Sexism (Or Other-Isms),\u201d 1991 Duke Law Journal<\/em> 397-412 (1991).<\/p>\n

[44]<\/a> The oddity of having a religious belief against serving black people birthday cake can\u2019t legally be treated as the relevant difference, because, as Gorsuch reminds the reader, the First Amendment bars adjudicators from making personal assessments about the offensiveness or quality of the religious views held in reaching their legal decision. Masterpiece<\/em>, 138 S. Ct. at 1734 (Gorsuch, J., concurring).<\/p>\n

[45]<\/a> See<\/em>, e.g.<\/em>, Masterpiece, <\/em>138 S. Ct. at 1733 (Kagan, concurring) (citing Newman v. Piggie Park Enterprises, Inc.<\/em>, 390 U. S. 400, 402, n. 5 (1968) (per curiam)).<\/p>\n

[46]<\/a> Masterpiece Cakeshop Inc. v. Elenis, No. 1:18-cv-02074-WYD-STV (D. Colo. Jan. 4, 2019).<\/p>\n

[47]<\/a> Elise Schmelzer. \u201cMasterpiece cakeshop, state of Colorado agree to mutual ceasefire over harassment, discrimination claims.\u201d The Denver Post. <\/em>March 5, 2019. https:\/\/www.denverpost.com\/2019\/03\/05\/masterpiece-cakeshop-colorado-mutual-ceasefire-over-claims\/<\/a>.<\/p>\n

[48]<\/a> This article was the winner of the 2019 Harvard Law School LGBTQ Writing Prize. Thanks to Mike Banerjee, Molly Coleman, John Corvino, Brittany Fish, Dan Frank, Mary Ann Glendon, Rachel Kroll, Natalie McCauley, Emily Mannheimer, and Mark Tushnet for their insight and feedback, which helped make this a better article. All remaining errors are solely those of the author.<\/p>\n","protected":false},"excerpt":{"rendered":"

Justice Neil Gorsuch argues that it is impossible to make a principled legal distinction between (a) a baker\u2019s refusal to make a cake that the customer will use to celebrate a same-sex marriage and (b) a baker\u2019s refusal to make a cake designed with religious text or symbols expressing disapproval of same-sex marriage, when both sexual-orientation and religion are protected characteristics. On his view, neither refusal is discriminatory, because both cases are \u201cabout the kind of cakes, not the kind of customers.\u201d Gorsuch\u2019s claims that in both cases these refusals are objections to supporting specific messages and not refusals made because of the potential customers\u2019 protected characteristics. Here I argue that a principled distinction can be made between the two cases. In the former, the baker is trying to control the use for which an item he ordinarily sells is used based on the users\u2019 sexual-orientation. In the latter, the baker is refusing to make an item that she would refuse to make for anybody, regardless of the characteristics of the potential customer. I further argue that for this reason, among others, the former case ought to be ruled discriminatory while the latter case ought not. 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