On Tuesday, Dec. 5, the U.S. Supreme Court will hear oral argument in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission.  Colorado civil rights law requires vendors to provide their products and services without discrimination according to, among other things, sexual orientation.  A Colorado baker claims that the U.S. Constitution trumps the state nondiscrimination law, and protects his right to refuse to bake a cake for a gay couple’s wedding celebration.  Several key distinctions explain the constitutional boundary between the baker’s right to refuse service and the state’s power to regulate.

Freedom of Religion Under the Constitution vs. Federal Statute

The baker claims that the state requirement that he provide a cake to be displayed and consumed at a gay marriage violates his freedom of religion.  Because he complains about the application of a state law, he must base his claim only on the U.S. Constitution.  In this respect, he is different from the owners of the Hobby Lobby retail chain, who several years ago successfully argued that the federal Affordable Care Act violated their freedom of religion by requiring them to pay into an insurance fund that could be used to finance birth control.  A different, more religious freedom-friendly test applied to the Hobby Lobby owners because they challenged a law enacted by Congress than the test that applies to the baker who challenges application of a state law.  Specifically, people claiming a burden on their free exercise imposed by federal law can claim an exemption from a neutral requirement, such as that all employers fund preventative health case such as contraception, by showing the law imposes a substantial burden on them because of their particular religious beliefs.  By contrast, to prevail under the federal Constitution and avoid application of a state law requirement, a person, like the Masterpiece baker, must show that the state law singles him out for especially disadvantageous treatment because of his religious beliefs.  The Colorado law does not do this.  It applies neutrally to all businesses.  For this reason, as Dean Erwin Chemerinsky explains in a recent op-ed, the baker’s free exercise of religion claim is weak.

Freedom of Religion vs. Free Speech

Because the Masterpiece baker cannot prevail on his free exercise of religion claim, he primarily claims that the Colorado law unconstitutionally compels him to speak.  To succeed on the speech claim, the baker must convince the Court that the cakes he bakes qualify as “speech” protected by the Constitution.  The Court has made clear that it will not accept that “an apparently limitless variety of conduct can be labeled “speech” whenever the person engaging in the conduct intends thereby to express an idea.”

Instead, it requires both that the speaker intend to send a message and that the audience be likely to understand it.  So, to prevail on his compelled speech claim, the baker must transform the conduct of creating and providing a visually appealing, edible product into a message of endorsement from him, likely to be understood by wedding attendees, of the event at which it will be displayed and consumed.  The constitutional determination of whether wedding cake viewers understand a message from the baker must be made from the perspective of reasonable observers within the community, not according to the baker’s subjective assessment of his own messaging.  And, as Professors Dale Carpenter and Eugene Volokh point out in their amicus brief, viewed objectively, the answer is obvious: “No one looks at a wedding cake and reflects, ‘the baker has blessed this union.” A generic cake without overt messaging, however lovely, is not constitutionally protected speech.

Message vs. Status Refusals to Serve

The First Amendment protects people from being required to participate in sending messages with which they disagree.  Professor John Corvino points out in a recent New York Times op-ed, that a baker’s claim would be more likely sound if he refused to decorate a cake with two grooms, or if she refused to write on a cake, according to a client’s request, “Homosexuality is a detestable sin.”  Instead, the Masterpiece baker’s claim is that he may refuse to provide a cake without identifiable pro-gay marriage messaging to gay people because its use at the reception compels him to endorse the event.  According to Corvino, the latter baker’s “objection was about what she sold; a design-based objection. [The Masterpiece baker’s] objection was about to whom it was sold; a user-based objection,” which does not implicate the baker’s right to speak.

Vendor Nondiscrimination Laws vs. Consumer’s Right to Boycott 

Governments have the constitutional power and duty to regulate the qualities of products and services, and how they are sold by vendors, to protect the public and promote the public interest, including ensuring access by members of the public to the products and services without discrimination according to particular traits, which governments may identify differently.  Colorado has chosen to identify sexual orientation as a protected trait and businesses that take advantage of the many Colorado laws that protect and promote business operations are legitimately subject to nondiscrimination limits as well.  By contrast, citizens who spend money, rather than make it through dealing with the public, retain their individual rights to choose who to patronize and where to spend their money.  Five Justices of the Supreme Court have found Congress, at least, to lack the power to force individuals to purchase products to promote a public purpose.

In his role as vendor, the Masterpiece baker must comply with reasonable government regulations of his business operations, including nondiscrimination laws.  In his purchases as a private citizen, he may refuse to spend money in ways that he alone determines may violate his conscience, or for any other reason at all.