About this Blog Series
Welcome to the third in a (so-far) 9-part series titled Frosting on the Cakes: Non-Discrimination Laws, First Amendment in the Mix at Supreme Court (Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, No. 16-111). Through the summer, we will be joined by guest author Chad M. Eggspuehler to dig into the dynamics of this case, what you need to know to follow it through the process, and why it is so important. Chad is a member of the Tucker Ellis Appellate & Legal Issues Group. Before joining Tucker Ellis, he clerked for federal trial and appellate judges in New Jersey and Ohio, including the Honorable Deborah L. Cook, Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit. All views expressed here are those of the author. Chad can be reached at email@example.com.
Much of Masterpiece’s argument depends on the view that Mr. Phillips is an artist and his cakes are his canvas. It frames the issue as follows: “Colorado’s public accommodations law . . . compel[s] Phillips to create expression that violates his sincerely held religious beliefs about marriage,” and thus violates the Free Speech or Free Exercise Clauses of the First Amendment. In weighing this argument, it helps to separate the symbolic speech issue from the compelled speech precedents.
Functionally, the cake-as-art argument serves as a conduit to the First Amendment. In the absence of some expressive component, the mere sale of a product does not trigger First Amendment free-speech protections. Nor does the mixing of eggs, flour, and butter, or the baking of confections in an oven. The finished cake—and specifically, a wedding cake—must mean something, symbolically. And sure enough, most observers would agree that a wedding cake signifies a wedding celebration, typically at a post-nuptial wedding reception.
Indeed, many products can be symbolic of a wedding or marriage. Floral arrangements and bouquets, dresses and tuxedos, and perhaps the most enduring symbol of all—engagement and wedding rings. The production of each of these products requires a certain artistry or craftsmanship. But so do many goods and services—hi-end catering by accomplished chefs, photography, custom-made … anything (stationery, invitations, jewelry, clothing, decorative pieces, welcome mats featuring family names, etc.).
Acknowledging this does not diminish Mr. Phillips’s undisputed talent and skill as a creator of wedding cakes and other baked goods; it simply recognizes that, if one looks hard enough, there can be a level of artistry in many goods and services sold in the marketplace. If Masterpiece is right, the First Amendment arguably protects those merchants’ decisions to discriminate among customers, too. After all, the First Amendment does not mention art, cakes, or weddings as special protected categories of speech.
To guard against the unbridled expansion of First Amendment protections, the Supreme Court has differentiated between unprotected conduct and protected symbolic speech. In United States v. O’Brien, a case involving the burning of selective service registration cards, the Court rejected “the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.” 391 U.S. 367, 376 (1968). The following year, the Court extended First Amendment protection to anti-war black armbands worn by students in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969). Though neither O’Brien nor Tinker articulated a clear standard for symbolic speech, the Court revisited the issue a few years later in Spence v. Washington, concluding that a college student’s upside-down display of an American flag with a peace symbol constituted protected speech. 418 U.S. 405, 409–10 (1974) (per curiam). And a generation later, a fractured Court in Texas v. Johnson determined by a 5-4 vote that protest-related flag burning constituted protected speech, with the majority comprised of both liberal (Brennan, Marshall, Blackmun) and conservative justices (Scalia, Kennedy). 491 U.S. 397, 420 (1989).
The Spence-Johnson test, as it has become known, provides that conduct “possesses sufficient communicative elements to bring the First Amendment into play” when it evinces (1) “[a]n intent to convey a particularized message,” and (2) “the likelihood was great that the message would be understood by those who viewed it.” Johnson, 491 U.S. at 404 (quoting Spence). The second part—focusing on the likely effect on an audience—demonstrates that this is not a purely subjective test, and understandably so—lest the actor could simply label the conduct speech, contrary to O’Brien.
In the cert petition, Masterpiece challenges the Colorado appellate court’s application of the Spence-Johnson test, arguing that the Supreme Court abandoned or modified it in its 1995 decision Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, which recognized the inherently expressive nature of parades and held that parade organizers had a First Amendment right to exclude a local LGBT group. 515 U.S. 557, 569–81 (1995). The key passage in Hurley reads:
a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a “particularized message,” cf. Spence v. Washington, 418 U. S. 405, 411 (1974) (per curiam), would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.
Id. at 569.Sure enough, federal courts have differed on whether the particularized-message requirement of Spence-Johnson remains good law after Hurley. An entire blog series could be devoted to the meaning of this passage in Hurley, especially given the context in that case where the state court had ruled that the parade needed a particularized message, rather than a generalized theme, to receive First Amendment protections. But that is beside the point, because there is no question that the second part of the Spence-Johnson test—the objective, audience-impact consideration—remains good law in light of the Court’s unanimous 2006 decision in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (FAIR)—ironically, a case finding no First Amendment right for educational institutions to exclude military recruiters, without penalty, in objection to the military’s “Don’t Ask, Don’t Tell” policy. 547 U.S. 47 (2006).
Chief Justice Roberts’s opinion in FAIR reaffirmed O’Brien’s conclusion that conduct cannot simply be labeled speech, cited Johnson approvingly, and distilled the symbolic-speech test as follows: “we have extended First Amendment protection only to conduct that is inherently expressive.” 547 U.S. at 65–66. In doing so, the Court considered the audience-impact of the law school’s prohibited conduct—i.e., excluding military recruiters, resulting in off-campus recruiting. According to the Court, “[a]n observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school’s interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else.” Id. at 66. From this objective analysis, the Court concluded that “[t]he expressive component of a law school’s actions is not created by the conduct itself but by the speech that accompanies it.” Id.The FAIR Court even amplified O’Brien’s First Amendment-creep concern—that simply “combining speech with conduct were enough to create expressive conduct”—with a tax objector hypothetical. “[I]f an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes, we would have to apply O’Brien to determine whether the Tax Code violates the First Amendment. Neither O’Brien nor its progeny supports such a result.” Id.
Since FAIR, the Supreme Court has rejected the argument that legislators’ votes constitute protected symbolic speech in Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011). Though Justice Scalia’s opinion for the Court in that case does not elaborate on the symbolic-speech test it applies, it cites Johnson and FAIR approvingly, and it objectively considers the audience-impact of legislative votes, noting that the ballots do not “contain a check-one-of-the-boxes attachment that will be displayed to the public” explaining the legislator’s rationale. Id. at 126. It did not matter for First Amendment purposes, the Court held, that legislative votes reflected deeply held beliefs or had public consequences. Id. at 126–27 (citing John Quincy Adams’s unpopular vote for the Embargo Act of 1807 that cost him his Senate seat).
Guided by these precedents, the question here is whether the preparation and sale of a wedding cake bereft of any messaging or preferred design aesthetic—or the refusal to do the same—is inherently expressive conduct like the parade in Hurley, flag burning in Johnson, and the flag display in Spence. From an objective, audience-impact perspective, the answer is No.Beginning with the component steps of making a cake for order (ingredient selection, mixing, baking, frosting, and decorating), none are inherently expressive conduct conveying a baker’s message to the public. To be sure, cake design and decorating involves a certain degree of artistry, and where the order requests, a certain degree of customization. Nevertheless, the Hurley artist analogy is inapposite; unlike Jackson Pollock, Arnold Schoenberg, and Lewis Carrol, Mr. Phillips is not composing art of his own choosing, but preparing a consumable (and perishable) product, elegant though it may be, according to a customer’s wishes. And though he may offer entirely custom cakes that he deems art, nothing in the record suggests that is his exclusive or even primary business model. The fact that Masterpiece’s website displays cake models and informs customers of myriad cake, frosting, and filling choices demonstrates that it is possible to purchase an off-the-shelf cake, or, for future events, a predesigned cake. See http://masterpiececakes.com/wedding-cakes/ (identifying exemplar wedding cakes by name); http://masterpiececakes.com/flavors-frostings-fillings/.
Turning to the finished product (the conduct required by Colorado’s anti-discrimination law), a wedding guest or bystander observing the cake at a wedding reception might understand it as a symbol of the fact that a marriage or commitment ceremony of some sort has taken place and presume that the couple has purchased the cake and selected these flavors. But, absent additional context like the baker publicly giving a personalized cake as a gift to the wedding couple, no one would presume that the wedding cake symbolizes the baker’s viewpoint about the marriage. What sentiment would that even be? A relative fondness for the wedding couple compared to other potential customers? The baker’s estimation of their chances for a successful marriage? Some sign of political support depending on the political clout of the couple? A wedding cake is no more expressive of the baker’s message than the legislator’s vote deemed unprotected conduct in Nevada Commission on Ethics. And even with some customization—such as unique display stands, icing flourishes, and edible flowers—the audience would have no reason to perceive a message from the bakery.Masterpiece appears to claim that Colorado law forces Mr. Phillips to endorse a same-sex wedding. But do Mr. Phillips’s other made-to-order wedding cakes express his endorsement of those couples’ respective weddings? Surely not. And even if that were his intent, would a reasonable observer construe the existence of a cake as the baker’s stamp of approval? Or, by extension, would the existence of an wedding band—exchanged during the actual wedding ceremony and worn thereafter—signify to the public the jeweler’s approval of a marriage? Would John Tinker’s classmates have imputed his anti-war message to the unseen merchant of the black armbands? The answer to all of these questions: No.
Flipping the script to the denial of service, would a reasonable observer at a wedding have any idea that a previous bakery refused the wedding couple, unless told so? Even at the point of sale, the expressive nature of a denial of service derives from the explanation. To the random observer, the denial of service could mean that the bakery is closed next week, overbooked, out of ingredients, doesn’t make wedding cakes at all, dislikes the customers, etc. Here, Mr. Phillips provided an explanation: he does not approve of same-sex weddings. As in FAIR, the expressive component comes from the speech that accompanies the conduct. “The fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O’Brien.” 547 U.S. at 66.It also bears mention that, for all of Masterpiece’s emphasis on the unique tradition and symbolism of wedding cakes, the administrative record contains charges that it refused to sell cupcakes to a same-sex couple who stated that the cupcakes would be for a commitment ceremony. (See CCRD Probable Cause Order here, at 3.) The bakery representative told the couple of Masterpiece’s “policy of not selling baked goods to same-sex couples for this type of event.” So is the expression really the wedding cake, as Masterpiece claims, or its No Goods for LGBT Ceremonies policy?
At bottom, Masterpiece seeks a baker’s veto to the state’s antidiscrimination law. Such a veto would enable the merchant to transform generally available goods and services into protected expressive conduct whenever he seeks to deny service. For instance, religious opposition to interracial marriage or interfaith marriage. Mr. Phillips may not object to such marriages, but that would not matter if the First Amendment protects as expressive conduct a baker’s right to deny goods and services.
People may think that businesses should have the right to refuse LGBT customers, or other minority groups, and they have a First Amendment right to advocate for such a right. (Thankfully, Colorado and many other states and cities have come to the opposite conclusion.) But that belief does not elevate the act of refusing customers into constitutionally protected symbolic speech.
Ultimately, Hurley’s rejection of a subjective, particularized-message test may come back to haunt Masterpiece. The intent to oppose the marriage does not resolve the symbolic speech question, even if it reflects a deeply held belief. See Nevada Comm’n on Ethics, 564 U.S. at 127 (“[T]he fact that a nonsymbolic act is the product of deeply held personal belief—even if the actor would like it to convey his deeply held personal belief—does not transform action into First Amendment speech.”). Rather, as FAIR demonstrates, the relevant question is whether the conduct is inherently expressive. Here, it is not.
 The only mention of “art” in the Constitution appears in Article I, referring to Congress’s power to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” U.S. Const. art. I, § 8 (emphasis added).
 Following this logic, are exemplar wedding cakes, prepared for promotional purposes and not ultimately bestowed upon a worthy couple, wasted endorsements?
Chad M. Eggspuehler is a member of the Tucker Ellis Appellate & Legal Issues Group. Before joining Tucker Ellis, he clerked for federal trial and appellate judges in New Jersey and Ohio, including the Honorable Deborah L. Cook, Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit. All views expressed here are those of the author. Chad can be reached at firstname.lastname@example.org.