About this Blog Series

Welcome to the fifth in an 8-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). We are 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 chad.eggspuehler@tuckerellis.com.

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Anticipation continues to build as the Colorado Civil Rights Commission and the ACLU filed their responsive merits briefs and the Supreme Court announced an argument date of December 5.  Plus, Time magazine just ran a compelling piece from the mother of the couple denied service by Masterpiece Cakeshop, “How It Feels When Someone Refuses to Make Your Son a Wedding Cake.”  (Article and interview available here.)  As I continue to plow through the parties’ merits briefs and the various amici, I’d like to pick up with the First Amendment free exercise claim, as well as another First Amendment issue lurking behind the pleadings:  the freedom of association.

Masterpiece Cakeshop argues that Colorado’s public accommodations law infringes its owner’s free exercise of religion by requiring him to participate in an activity—a same-sex wedding—that goes against his religious beliefs.  As I noted in the second blog entry (see here), factually, this case does not involve a request for merchant participation or presence in the actual wedding ceremony or reception.  But even beyond that, the free exercise claim runs into a Supreme Court roadblock penned by none other than the late conservative stalwart Justice Antonin Scalia (and joined by current swing-Justice Anthony Kennedy): Employment Division v. Smith, 494 U.S. 872 (1990).

In Smith, the Court rejected a free-exercise challenge to Oregon’s law banning possession of peyote, a Schedule I hallucinogen that happened to be used by the Native American Church for sacramental purposes during religious gatherings.  The Court acknowledged that “the ‘exercise of religion’ often involves not only belief and profession but the performance of (or abstention from) physical acts,” including “assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, [and] abstaining from certain foods or certain modes of transportation.”  Id. at 877.  Yet, the Court explained that it has “never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.”  Id. at 878–79 (citing Minersville Sch. Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586 (1940)).  “[O]therwise prohibitable conduct”—smoking peyote—did not become protected religious activity merely because the person who engages in that conduct did so with “religious convictions.”  See id. at 882.  Because Oregon had a valid basis for prohibiting the possession of drugs and the generally applicable law did not target a specific religious activity, it did not violate the Free Exercise Clause, and the Native American Church was not entitled to a religious exemption from the law.

To be sure, we have come a long way as a society since the lunch counters in Piggie Park and Katzenbach, and the hotel rooms in Heart of Atlanta Motel.[1]  Legal protections for LGBT citizens, in particular, have blossomed in recent years thanks to prolonged grassroots, legislative, and litigation efforts, especially the Supreme Court’s landmark Lawrence (2003), Windsor (2013) and Obergefell  (2015) decisions.  And yet, consenting same-sex couples were still being arrested under states’ anti-sodomy laws as recently as 2003 for nothing more than their private sexual relationships.

Smith left open the possibility, however, that a free exercise claim might prevail if the generally applicable law also infringed upon another right, such as the freedom of expression or the freedom of association.  See id. at 882 (citing Barnette flag-salute case and Wooley license plate case).  Masterpiece Cakeshop attempts to thread that needle, coupling Mr. Phillips’s free exercise claim with its compelled-speech argument.  Previous blog entries have examined the flaws of Petitioners’ expressive-conduct and compelled-speech theories.  (See here and here.)  The free association theory implicit in Petitioners’ argument fares no better.

First, as a threshold matter, Petitioners never raised a free association defense to the discrimination charges against it.  Courts—and especially the Supreme Court—generally will not review claims not found in the pleadings.

Second, the free association cases Petitioners cite—Hurley and Dale—are distinguishable, in that neither involved a generally applicable rule requiring equal access to goods and services in the marketplace.

Hurley involved the application of Massachusetts’s public accommodations law to require a private veterans group to include an LGBT group in its St. Patrick’s Day parade.  The Court recognized the “inherent expressiveness” of private groups gathering to form a parade.  Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 568 (1995).  Though the Court recognized the longstanding history and importance of public accommodations laws—something the Court considered “well within the State’s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination,” id. at 572—it deemed the Commonwealth’s application of the law “peculiar” because it sought to add an LGBT group’s message to the parade, not prevent the exclusion of LGBT citizens, id.  In that way, the Commonwealth “essentially requir[ed] petitioners to alter the expressive content of their parade” and add a message that they did not want to include.  Id. at 572–73.  Such intrusion into the parade organizers’ message “violate[d] the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.”  Id. at 573.

“[O]therwise prohibitable conduct”—smoking peyote—did not become protected religious activity merely because the person who engages in that conduct did so with “religious convictions.”  Because Oregon had a valid basis for prohibiting possession of drugs and the generally applicable law did not target a specific religious activity, it did not violate the Free Exercise Clause…

Similarly, Dale involved the application of a state’s (New Jersey’s) public accommodations law to alter the membership and associational message of a private group—the Boy Scouts. The Supreme Court held that requiring the inclusion of a gay rights activist as a scoutmaster, despite the Boy Scouts’ policy of opposing homosexual behavior, violated the Boy Scouts’ freedom of association.  Boy Scouts of America v. Dale, 530 U.S. 640, 654 (2000).  Comparing the First Amendment violation to that in Hurley, the Court reasoned: “[a]s the presence of GLIB in Boston’s St. Patrick’s Day parade would have interfered with the parade organizers’ choice not to propound a particular point of view, the presence of Dale as an assistant scoutmaster would just as surely interfere with the Boy Scout’s choice not to propound a point of view contrary to its beliefs.”  Id.

Dale also involved an overly broad interpretation of “public accommodations,” with the state courts stretching beyond the concern for equal access in the marketplace—the original purpose for such laws—and intruding into the membership of private organizations.  Id. at 657.  That expansion “from clearly commercial entities, such as restaurants, bars, and hotels, to membership organizations” increased “the potential for conflict between state public accommodations laws and the First Amendment rights of organizations.”  Id.

It is no answer to suggest, as the United States does in its amicus brief for the bakery, that racial discrimination is qualitatively different than discrimination against LGBT individuals.  Of course it is.  Each minority group that has suffered state-sponsored discrimination has withstood the horrors of its own unique history.

Unlike Hurley and Dale, this case involves no attempt to change the membership or message of a private organization.  The public accommodations law has been applied in a traditional commercial context—i.e., a couple went to a bakery with the goal of purchasing a wedding cake.  Colorado’s application of its public accommodations law to ensure that its LGBT citizens have equal access to goods and services in the marketplace should be “well within the State’s usual power to enact when a legislature has reason to believe that a given group is the target of discrimination.”  Hurley, 515 U.S at 572.

Some may say, but it is just a wedding cake, can’t they go somewhere else.  That sentiment, while understandable (and akin to the libertarian ideal of businesses being able to refuse customers for any reason), is a policy argument for changing Colorado’s public accommodations law, not an argument for extending First Amendment protection.

And no, this is about much more than cake.

As previously noted, the text of the First Amendment does not distinguish between wedding-related speech and religious practices and other forms of expression.  If a bakery can claim a First Amendment exemption, on speech and/or religious grounds, to deny wedding cakes to LGBT customers, what limiting principle would prevent the same bakery from asserting a First Amendment right to deny celebratory cupcakes (administrative record, see here at 3) or birthday cakes to LGBT customers?  Or restaurants denying service, department stores refusing to sell clothing, day care centers refusing children, and medical care providers refusing to provide emergency medical services to LGBT customers and their families?  Or funeral homes refusing to honor their contracts with LGBT customers and cruelly turning away their loved ones during their time of mourning? (See article here.) Public accommodations laws ensure equal access to the marketplace to protected classes of people at all stages of life and death, not just in the procurement of wedding-related services.

Public accommodations laws ensure equal access to the marketplace to protected classes of people at all stages of life and death, not just in the procurement of wedding-related services.

In its merits brief, Masterpiece scoffs at the suggestion that other businesses might discriminate against LGBT customers, citing majority support for same-sex marriage and “steep market costs” related to customers boycotting discriminatory business.  Indeed, Masterpiece denies seeking “a right to simply refuse to deal with gay people.” Others have suggested that Colorado’s defense of its public accommodations law is nothing but a slippery slope argument run amok.  Yet, were the Supreme Court to recognize a religious exemption to merchants serving LGBT customers and enshrine that in the Constitution, no federal or state public accommodations law could overcome that.  It would be “a right to simply refuse to deal with gay people.”  Many merchants could claim an expressive interest in their goods or services or an associational interest with their clientele (from-scratch food, custom jewelry, stationery, bespoke clothiers) and thus a concomitant constitutional right to deny service to LGBT individuals under the guise of free speech and/or the free exercise of religion.  That, in turn, would have the ripple effect of discouraging LGBT persons from engaging in the marketplace—the message would be, you’re not welcome here, go back into the closet.

The lunch counters of the 1960s may seem like a distant memory to many, like me, who were born to later generations.  But the lessons from that era still ring true today.

Such a newfound constitutional right might also undermine public accommodations laws’ protections against racial, religious, and gender discrimination in the marketplace, among others.  We must not forget that conscientious objectors to racial integration asserted First Amendment religious-freedom challenges to civil rights laws in the 1960s.  The courts wisely rejected those attempts to create a religious exemption to antidiscrimination laws.  E.g., Newman v. Piggie Park Enters., Inc., 256 F. Supp. 941, 945 (D.S.C. 1966), aff’d in relevant part and rev’d in part on other grounds, 377 F.2d 433 (4th Cir. 1967), aff’d and modified on other grounds, 390 U.S. 400 (1968) (finding that, notwithstanding the restaurant owner’s constitutional right to espouse discriminatory religious views, he did not have “a constitutional right to refuse to serve [African Americans] in his [restaurants] upon the ground that to do so would violate his sacred religious beliefs”).

The lunch counters of the 1960s may seem like a distant memory to many, like me, who were born to later generations.  But the lessons from that era still ring true today.  Last month, I had the privilege of visiting the Center for Civil and Human Rights in Atlanta with my moot court students—I highly recommend it to anyone passing through the area.  Not only did we see rubble from the 16th Street Baptist Church bombing that took the lives of four children on September 15, 1963, but we had the opportunity to sit at a mock-up of a 1960s diner lunch counter and hear—and feel—the hatred of segregationists threatening peaceful sit-in protestors.  I could only withstand 42 seconds of the shoves, racial slurs, smashed bottles, and death threats before I threw down the headset and left the counter in tears.  We are so lucky to live today, where such pervasive discrimination and hatred have, for the most part, faded to shadows.

Colorado has determined that LGBT persons, like racial and religious minorities, deserve equal access to the marketplace.  And, notwithstanding countervailing legislative efforts, the state has not enacted a religious exemption to equal treatment of LGBT persons in the marketplace.  One would think that the champions of states’ rights would support Colorado’s policy choice on this issue, regardless of their personal views.

It is no answer to suggest, as the United States does in its amicus brief for the bakery, that racial discrimination is qualitatively different than discrimination against LGBT individuals.  Of course it is.  Each minority group that has suffered state-sponsored discrimination has withstood the horrors of its own unique history.  Jews, Roma, and LGBT persons, among others, during the Holocaust.  The Japanese Americans sent to internment camps during World War II.  The long struggle of African Americans to overcome slavery, only to face generations of invidious Jim Crow segregation and hostile resistance to integration.  In each of these instances, state-sponsored discrimination worked in tandem with—and even amplified—private discrimination.

To be sure, we have come a long way as a society since the lunch counters in Piggie Park and Katzenbach, and the hotel rooms in Heart of Atlanta Motel.  Legal protections for LGBT citizens, in particular, have blossomed in recent years thanks to prolonged grassroots, legislative, and litigation efforts, especially the Supreme Court’s landmark Lawrence (2003), Windsor (2013) and Obergefell  (2015) decisions.  And yet, consenting same-sex couples were still being arrested under states’ anti-sodomy laws as recently as 2003 for nothing more than their private sexual relationships.[2]  Meanwhile, private acts of discrimination and violence against LGBT persons still occur far too often (e.g., the 2016 shooting at the Pulse nightclub, and, last month, signs at a local university telling LGBT students to commit suicide).  For many couples that live in small towns, they cannot simply go to another bakery—or another store or funeral home—if they are denied service.

Some may say, but it is just a wedding cake, can’t they go somewhere else.  That sentiment, while understandable (and akin to the libertarian ideal of businesses being able to refuse customers for any reason), is a policy argument for changing Colorado’s public accommodations law, not an argument for extending First Amendment protection.

And no, this is about much more than cake.

In light of this history of pervasive discrimination, Colorado has chosen to enact additional legal protections for its LGBT citizens.  As pertinent here, Colorado has determined that LGBT persons, like racial and religious minorities, deserve equal access to the marketplace.  And, notwithstanding countervailing legislative efforts, the state has not enacted a religious exemption to equal treatment of LGBT persons in the marketplace.  One would think that the champions of states’ rights would support Colorado’s policy choice on this issue, regardless of their personal views.

That brings to mind an important passage from Justice Scalia’s majority opinion rejecting a religious exemption to Oregon’s drug laws in Smith:

to say that a nondiscriminatory religious practice exemption is permitted, or even that it is desirable, is not to say that it is constitutionally required, and that the appropriate occasions for its creation can be discerned by the courts.  It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.

Smith, 494 U.S. at 890.  Colorado’s public accommodations law does not intrude upon the membership or message of any private organization; it merely ensures that protected classes have equal access to goods and services in the marketplace.  Nor does it target any specific religious group or practice.  The matter of religious exemptions should therefore be left to the political process.

[1]Katzenbach v. McClung, 379 U.S. 294 (1964) (upholding public accommodations protections of the Civil Rights Act against a Commerce Clause challenge by the owner of a segregated barbecue restaurant); Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (same, rejecting Commerce Clause challenge by owners of a segregated motel).

[2]I vividly remember debating Lawrence v. Texas with my classmates in Dr. Anthony Champagne’s constitutional law class during my sophomore year of college when Bowers v. Hardwick (1986) was still good law and many doubted that the Court would recognize any constitutional legal protections for same-sex couples.  One student tasked with asserting the couple’s constitutional argument laid bare the dignitary harm at stake and the misguided paternalism of Texas’s law with a matter-of-fact date-night hypothetical—what exactly does the State suggest that my clients do, play Monopoly?  So recent, and yet seemingly a lifetime ago.

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 chad.eggspuehler@tuckerellis.com.