Analyzing the 303 Creative Decision
To what extent does the Supreme Court decision allow discrimination against LGBTQ people and others?
No doubt the Supreme Court’s 303 Creative decision allows some business owners to discriminate against some LGBTQ people (and others) some of the time, specifically when they custom-order expressive products. For example, under the decision, a cake baker could decline to bake a to-order cake with a written message on it celebrating someone’s transgender change. (The decision directly pertains to a developer of web sites for marriages, but of course Colorado also has the infamous case of the bigoted cake baker.)
For a lot of people—and I sympathize with the sentiment—that the decision sometimes allows such discrimination is the end of the story. The decision is therefore wrong. Business owners simply should not be allowed to discriminate against anyone, ever.
I think the court got the case right, despite its unsavory implications. People have the right to freedom of speech, even when that speech is unsavory, wrong, immoral, even vicious. And the freedom of speak entails the freedom not to speak. (Of course people cannot rightly incite violence against specific parties and the like.)
The difference between me and religious conservatives is that I fully recognize that discriminating against a gay or trans person in the marketplace is morally wrong. But it’s simply not government’s proper job to make people morally virtuous. It’s government’s job to protect people’s rights.
My New Column
Yesterday Complete Colorado published my piece on the matter, “SCOTUS correctly recognizes the right not to speak.” Here’s part of what I say:
[B]oth [Attorney General Phil] Weiser and [Representative Brianna] Titone (among many others) dramatically misinterpret what the ruling says and implies. The ruling does not, as Titone says, generally allow businesses to deny service based on “gender, race, religion, or who they love.” Nor does the ruling allow a business generally to refuse to serve interracial couples, women-owned businesses, or Mormons, as Weiser claims in his release. Rather, the decision pertains only to products created to-order that express some message. That’s a small fraction of business services.
Consider the difference. Let’s say some bigoted jerk disapproved of interracial marriage. Believe it or not, there still are a few people like that (as I’ve discussed). Under the ruling, if an interracial couple went into a bakery to buy an off-the-shelf cake, the business owner could not legally decline to sell them the cake. But if the couple ordered a cake specifically to explicitly celebrate an interracial marriage, the cake baker could refuse the order on First Amendment grounds.
In his detailed review of the decision, Eugene Volokh notes the decision is “a narrow case, authorizing First Amendment defenses to only a limited set of applications of antidiscrimination law, when speech creators want to choose the particular content of speech that they seek to create.” . . .
Do you think cake bakers should be free to turn down an order for a cake that says “God Hates F__s,” “Satan Rules,” or “Interracial Marriage Violates God’s Will”? Hopefully you agree bakers should have that freedom. So then how can government draw a line saying business owners have a right to decline to promote certain messages and not others?
Read the entire piece.
The Decision’s Narrow Scope
Titone understandably worries about the slipperiness of the slope. She Tweeted, “If a chef calls their food art, they may decline service to people. If a hotel room is decorated as ‘art’, that may apply. What’s the limit of ‘creative business’?”
But I think Titone remains overly worried about the scope of the decision. Here is part of what Dale Carpenter writes on the topic:
I read Justice Gorsuch's decision as broader in some respects than some may hope it is. It can't reasonably be cabined to all of its specific facts. The rationale for the vendor's message-based objection—religious or not, internally consistent or not, odious or not—does not matter. Op. at 24-25. Nor, in principle, are the speech protections the Court outlined limited to the creation of messages about same-sex marriage, marriage in general, or homosexuality.
On the other hand, the decision is also narrower in important ways than some progressives fear or some religious conservatives/libertarians may hope. I read 303 Creative to hold that a vendor cannot be compelled by the government:
(1) to create customized and expressive products (whether goods or services) that constitute the vendor's own expression (op. at 9, 16);
(2) where the vendor's objection is to the message contained in the product itself, not to the identity or status of the customer (op. at 18 n. 3, 20).
Carpenter points out that “almost all of the products we buy are neither customized nor expressive,” and “most customized products are not expressive.” In other words, off-the-shelf products do not fall under the ruling, and that’s most of what we buy (e.g., a cake off-the-shelf at Costco). And even among most customized products, most are not expressive in the relevant sense.
Carpenter gives some examples:
Think of the Ford F150, which has literally millions of option combinations. Or a Whopper, which was once promoted with the tagline, “Have it your way,” indicating Burger King’s willingness to tailor the burger to customers' taste preferences. There will be no claim for businesses selling these kinds of products.
Difficult Cases on the Margins
However, which customized products also count as expressive under the ruling can be a tricky business. Carpenter again:
Of course, this analysis does not answer all questions on the margins. The biggest of these will be: what sorts of customized products count as expressive? (Given Colorado's stipulations and the nature of the proposed services for wedding website design, product expressiveness wasn’t a close question in 303 Creative. Op. at 21-22).
Line-drawing itself is not a new problem in free speech cases. In particular, the Court has developed doctrines to distinguish what is protected speech from what is unprotected conduct. That test combines elements that are both subjective (the speaker’s own intention to communicate a message) and objective (the onlooker’s perception whether the message has actually been communicated). Under this test, conduct is sometimes expressive but most often not. What’s new after 303 Creative is that courts will now need to apply similar principles to commercial products. . . .
There will be hard and intensely fact-bound judgments to make, based on what has historically counted as expressive (e.g. parades, books, paintings, and films) and based on the use of intrinsically or inherently expressive elements in the work (e.g., speaking, writing, and deploying symbols). The mere fact that the vendor subjectively regards the product as “art” that expresses some message would not be enough to trigger First Amendment protection. A limousine driver may think he turns corners with a distinctive flair, but his craft is neither historically nor intrinsically expressive. A Subway “sandwich artist” might be creating something worthwhile, but it’s not speech.
Here’s part of what I wrote last year for Complete Colorado on the topic:
Here is a more difficult question: Can what appears to be the exact same product to an outside observer in fact become imbued with meaning because of its background and intended purpose? To me the answer clearly is yes. We all recognize that things can acquire sentimental value to particular individuals. A vase that strikes me as worthless junk might represent a loving relationship to its owner.
This is relevant to the Masterpiece Cakeshop case. The original 2012 events involve someone asking for a cake specifically for a gay wedding. Maybe if the person placing the order had just said it was for a wedding, the baker would have delivered a suitable product. It’s hard to say. But, in fact, the order was specifically for a cake celebrating a gay wedding. That imbued the cake with meaning, whether or not it changed what the final cake might have looked like.
Consider the latest case involving Masterpiece Cakeshop, in which a Denver court found against the bakery. As Nico Lang tells the story, Autumn Scardina called the bakery to order a pink and blue cake. Initially the bakery agreed. But then (and this obviously was a setup) Scardina mentioned that the colors signify her coming out as transgender, and the bakery then refused the order. Scardina, a lawyer, sued.
Let’s say someone had ordered a pink and blue cake to celebrate the birth of twins, the bakery had accepted that order, and that cake would have looked exactly like the cake that would have been delivered to Scardina, had the bakery made it. To me, what this shows is that background and intentions matter. Even though, physically, it would have been the same cake, it would not have been the same cake from the perspective of people’s viewpoints. And people’s viewpoints do matter, very much.
Let me offer another though experiment. Let’s say someone ordered a perfectly round, white cake from a Muslim baker, and the baker accepted the order. But then the person ordering the cake told the baker, “You see, this perfectly round, white cake represents to me the image of God. The whiteness represents God’s purity, and the roundness his perfection. I believe that when I look upon this cake, I will see in it the face of God.” Are Colorado courts prepared to say that a Muslim baker is required to bake a cake that the person ordering it insists is an image of God?
If I am reading Carpenter correctly, he would not want to call such a white cake “expressive” in the relevant sense. To me, in the context described, it clearly is. Obviously a Muslim (or a Christian) baker may not be forced to produce a cake that says “Satan Rules”—clearly that is expressive in the sense Carpenter describes. But there are a lot of potential expressions of a more subjective variety that I think Carpenter’s analysis does not handle so well.
Unfortunately, then, a lot of producers of custom, potentially expressive products probably will remain in legal limbo for quite a long time. We have seen repeatedly that various parties are ordering cakes and web sites and the like just to try to create test cases. So such cases probably will continue to be litigated.
Hardly anyone likes the extremes. On one side, the “hard-core libertarian” position holds that business owners should have the absolute right to refuse service for whatever reasons they want. Then we end up with such cases as white-only and no-LGBTQ restaurants (as unpopular as they would be in most areas). On the other side, the “hard-core anti-discrimination” position holds that a business owner may never discriminate against a potential customer. Then we end up forcing a religious baker to produce a cake that says “Satan Rules” or “God Is Dead.” So we seem stuck in a middle ground in which businesses may not discriminate generally with respect to the identity of the customer but may decline to produce custom, expressive products. That leaves some ambiguity, but on the whole it seems to me the Supreme Court has done a pretty good job of threading the needle.
Image from 2018: Ted Eytan