Masterpiece Cake: Justice Kennedy Embarrasses the Court

Stephen Kershnar

Masterpiece Cake: Christian Expression as a Tar Baby

Dunkirk-Fredonia Observer

June 11, 2018

            A week ago, the Supreme Court decided Masterpiece Cakeshop, LTD v. Colorado Civil Rights Commission, 584 U.S. ___ (2018). It made an ungodly mess of this case and future ones like it.

            The case involved a Colorado bakery owned and operated by Jack Phillips. Phillips refused to sell a cake celebrating gay marriage. The gay couple who requested the cake argued that refusing to design, make, and sell them a customized wedding cake violated Colorado’s anti-discrimination law. Colorado sanctioned Phillips. He responded by arguing that the sanctions violated his rights of free speech and free exercise of religion.

            Writing for the majority of the Supreme Court, Anthony Kennedy held that the commission that evaluated the case failed to give Phillips’ religious views fair and neutral consideration and so violated his right to free exercise of religion. The Court noted two types of evidence for its conclusion. First, the commission made hostile statements. One Colorado official stated that religious beliefs cannot legitimately be carried into the public sphere or commercial domain. Another said that religion has been used to justify slavery and the holocaust and “it is one of the most despicable pieces of rhetoric that people can use to – to use their religion to hurt others.”

Second, the commission treated Phillips very differently from how it treated William Jack. Jack requested two cakes from three bakeries. One requested cake would have said “God hates sin. Psalm 45:7” on one side and “Homosexuality is a detestable sin. Leviticus 18:2” on the other. The second requested cake had the words “God loves sinners” and “Christ died for us. Romans 5:8,” as well as an image of two groomsmen covered by a red X. The bakeries refused to make the cakes. Jack filed a discrimination complaint against the bakeries and the Commission ruled against him.

In a cowardly decision, Kennedy failed to indicate how such anti-discrimination laws would be evaluated when they ran into freedom of religion cases in the future in which such hostility was not shown or, at least, not as obvious. Worse, Kennedy, didn’t even address Phillips’ right to free speech. These failures make this case have little precedential value. Consider the free speech issue.

First, the Court didn’t address whether Phillips’ cake-making is expression and this will produce a mess. The state of Colorado embarrassed itself when it decided that making a cake opposing gay marriage is expressive but one celebrating gay marriage is not (Jacks’ vs. Phillips’ cases). Justice Thomas noted that, as a Constitutional matter, many activities are expressive. Precedent establishes that this includes excluding gays from a public parade, flag burning, nude dancing, refusing to salute the American flag, and wearing a black armband to protest the Vietnam War.

Thomas also observed that an expressive activity need not communicate a particular message to be constitutionally protected. The Constitutional right of free speech, he argues, clearly protects Jackson Pollack’s painting, Arnold Schoenberg’s music, and Lewis Carroll’s Jabberwocky verse even though none of it has a particular message. Given that all of these activities are expressive, Phillips creatively designing and making a cake celebrating gay marriage is undoubtedly expressive. This is even more obvious because the cake might have a particular message (“Gay marriage is beautiful”) explicitly written on it. This is certainly how Phillips viewed his cake artistry.

The Court has repeatedly held that someone’s right to free speech is not diminished because he expresses himself in a commercial context. See Pacific Gas & Electric v. Public Utilities Commission (1986) and Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc. (1976). So whether Phillips’ cake-making is expression is independent of whether it is commercially done.  

Second, Kennedy’s principles will make these cases an ungodly mess. Kennedy asserted that the Constitution permits anti-discrimination laws because gay people may not be treated as inferior in dignity or worth. This suggests the test is whether a business is treating gay people in a degrading manner. Yet, it is black letter law that the government may not decide what opinions are orthodox (permitted) or what is offensive. See, for example, West Virginia Board of Education v. Barnette (1943) and Matal v. Tam (2017). These principles conflict.

This area is murkier when one considers that the Court has said that the right to free speech protects degrading expressions toward gays. Examples include preventing them from marching in a public parade, dismissing them from boy scouts, or subjecting them to “God Hates Fags” signs. Again, the mere fact that expression is commercial does not weaken its free-speech protection.

Which is it then? Do people have an unfettered right to express themselves or may they express themselves, at least in a commercial context, only when doing so does not degrade gays. Importantly, deciding which messages degrade gays and thus are not constitutionally protected is exactly the sort of viewpoint discrimination that the Court has said repeatedly said that federal and state governments may not do.

Third, it is clear that the Phillips’ and Jack’s cases parallel each other. Both involve the refusal to express a message with which the bakers disagreed. Both involve a refusal that is independent of the person who made the request (that is, it is independent of whether the requester is a member of a protected class). So are bakers required to make both gay wedding cakes and “God hates fags” cakes? We don’t know.

This case is a mess. The Court evaluated commercial expression by whether it has a degrading message toward gays at the same time holding that the state may not evaluate the truth or offensiveness of a message. The Court lowered the bar for shutting down commercial speech while at the same time it gives the same protection to commercial and non-commercial speech. It allowed bakers and other craftsmen to avoid expressing ideas they find offensive in some cases but not others. Kennedy and several of his brethren embarrassed themselves.