Dividing the cake: high court briefs show First Amendment split

Eugene Volokh and the Cato Institute amicus program hardly ever take opposite sides of a First Amendment case, but it’s happening in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. At issue is whether the concept of expression extends to cake decoration, and if so how far. (Only cakes bearing custom/unique messages or symbols?) It’s not an easy line to draw. [Adam Liptak, New York Times; Eugene Volokh/Dale Carpenter brief for American Unity Fund; Cato brief]

SCOTUSBlog has a symposium on Masterpiece Cakeshop. The exact couching of the facts — was Phillips being asked to create a cake or design one? — could be important to the outcome [Ronald K.L. Collins] There is a Cake Artists brief. [Althouse]

While on another note, “Christian Cake Bakers and Gay Coffee Shop Owners: Why Freedom of Association Is for Everybody” [Jonathan Rauch, National Affairs; Scott Shackford, Reason] Earlier here, here, etc.


  • I have great respect for Ilya Shapiro, Randy Barnett, and Cato generally, but in this case, I think Eugene Volohk has the better argument as to where the line should be drawn – with the caveat (as he recognizes) – that compelling the baker to add text would be a step too far. Absent that, the typical wedding cake, no matter how festooned with flowers, pearls, and the like, lacks the specific message to truly make this an expressive, as opposed to merely beautiful, work.

    The Bride and Bride, or Groom and Groom, as the case may be – can put their own cheap plastic statues on top if that’s important to them. But the baker should bake and decorate with flowers, pearls, ribbon and bables, like any other provider of food, beverage, garments, or lodging. Only where the imprinting of a message (like a screen printer embelishing t-shirts) or the creation of religious iconography should the line be drawn.

    • The problem, of course, is that there is no real way to distinguish verbal from non-verbal expression, so the line has a ton of artificiality. An artist whose medium is non-verbal, e.g., a portrait painter, would be required under that view, to paint a picture of a same-sex couple, and no one thinks that’s correct under the First Amendment. So how do we meaningfully distinguish between artwork and creating customized cakes or flower arrangements or what have you? The answer is that you cannot.

      • Don’t be silly. We know exactly how the line between expressive and non-expressive conduct will be drawn: whatever our cultural masters decide in their magnanimity to permit us to express will be expressive, and whatever they think should not be expressed will be non-expressive. Above all else, you will be made to love the gays.

      • SPO,
        I respectfully disagree – the line has already been drawn excluding the photographer, the portrait artist, and the like. Canvas IS their expressive medium, yes, like the baker and their cake, but the subject is the bride and the groom, or bride and bride, or groom and groom whose likeness and celebration they are capturing in their work.

        Much different, in my view (again, this is a case of arbitrary line drawing) from a beautiful, but generic, wedding cake design.

        Demanding the wedding cake baker to inscribe Congratulations Jane and Jane, John and John, whatever is a step too far, just as demanding some write biblical verse, passages from the Koran, or any number of other expressive texts or symbols might be. Likewise, demanding the baker fashion a cake in the shape or likeness of couple would cross the line I propose.

        • Hmmm. So words are protected, but the artistry on a cake design is not?

          I think the flaw in your approach is determined by your statement that the line-drawing is “arbitrary”–well, freedom isn’t usually bounded by “arbitrary” lines (unless those lines are drawn with sufficient breathing room for the freedom).

          Additionally, the problem with arbitrariness is that it allows value judgments about the refusal to come into play—does anyone think that a cake festooned with Iron Crosses and the Totenkopf would be forced on anyone?

          • Nope, thus my comment about iconography being beyond the line. I actually think we are at very similar places in our positions, but are tripping over the definitions of some words.

            If you google “wedding cakes” then select images, the very vast majority will pass my test and yours – generic, off the shelf, very beautiful products. Which the prospective couple is free to buy, and have someone else place text, groom and groom plastic figures, bride and bride plastic figures, or whatever else on their off the shelf cake design – its those things they can’t compel the baker to do for them.

            There are some cakes in that google images search whose very decoration is expressive – the bride and groom silhouette in fondit, or if it were colored in the rainbow colors some have taken as their symbol. Those are out. Yes, there’s some arbitrariness to it, but not much, and certainly less than other workable line-drawing the courts have established in other cases.

            We may (do!) dislike it, but Arbitrariness is a fact of all of the rights we exercise as Americans – there are restrictions of time, place, and content on the First, the Second, The Fourth and Fifth, etc. We can wish it otherwise, but as a practical matter, that ship has long sailed. Better, I think, to choose a line that preserves the availability of a good or service for the as many as possible, while imposing the least possible restriction on those who provide that good or service in the stream of commerce.

          • I don’t think we are in similar places–I think we are very far apart.

            First off, there are very few “arbitrary” lines on the First Amendment (note, time place and manner isn’t one of them). The Second–the jurisprudence is emerging. The Fourth? Hmm—we’re already past what the Constitution strictly requires, so arbitrariness isn;t an issue, and the Fifth? Hmmm.

            Your last sentence gives away the game—you concede that we’re talking about constitutional rights here, but you’re willing to put those below the interest of having a “good or service available for the many as possible . . . .”

            Well, the Constitution trumps that.

            And we’re going to have some arcane rules about a rainbow being out, but certain kinds of flowers being in–sorry, in the words of John Marshall, the Constitution doesn’t have the prolixity of a legal code. Your formulation will allow the process to be the punishment for those who chose not to follow the orthodoxy.,

        • The Supreme Court has held on more than one occasion that no one may “insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech” (Cox v. Louisiana, 379 U.S. 536, 85 S. Ct. 453, 13 L. Ed. 2d 471 [1965]).

          That seems to be both time and place. Restricting speech around polling places during an election, again, time and place. “Obscenity” restrictions, particularly on broadcast television – that’s time, and again, place – or alternatively, manner, since one can certainly obtain “obscenity” (whatever that word means) via other communications. (Yes, I know the court is FINALLY waking up to the idea that these restrictions are, at minimum, Constitutionally suspect – but they have yet to repudiate those decisions of the 60s)

          “I’ll know it when I see it” seems to me the very definition of arbitrary, and yet, that seems to be the line drawn for obscenity….

          I don’t have to like it, and in fact I don’t, but it’s what we’ve got.

          I believe you’ve read into my concession more than was intended. This has always been about line drawing as the first sentence of my first comment made clear. The position of “no purveyor of goods or services should ever be compelled” is a line our Courts crossed long ago, and seemingly have no desire to return to.

          • Your approach seems to be “i don’t like it, but here we are, and so agree with my point of view..” A bit trollish, but whatever.

            Your citation of the street meeting is weak, at best, and the difference between a street meeting in the middle of Times Square and being forced to marshal one’s creativity (or presence) in violation of one’s conscience is manifest.

            And “time and place”–well, time and place restrictions have nothing to do with commandeering one’s creativity.

            The errors your posts make are legion:

            First, you want the line drawn in a manner that elevates statutory rights over constitutional ones.

            Second, you think that time, place and manner restrictions of the act of speaking are relevant to compelled expression.

            Third, you seem to think that the First Amendment tolerates code-like line drawing that would trigger process as punishment antics.

            Fourth, you think that arbitrary lines (based on countervailing non-constitutional considerations) in the area of forced expression are ok.

  • What if the purchaser wants a cake of their own design? Then it’s not the bakers expression, only the mechanics…

    • Should a gay graphics designer / printer be forced to print tee shirts with a supplied design that says “Gays Should Burn In Hell?” It’s not designer’s / printer’s expression, only the mechanics.

      Should a contractor be forced to build a meeting building for a branch of the KKK using either a supplied design or pre-fabbed building? It’s not the contractor’s expression, it is just the mechanic.

      The question should be whether a person can be forced to support groups, activities and thoughts that are against their religious, moral, or ethical beliefs?

  • So this is where we are- debating at what point the government can force someone to provide their talent and labor against their will and beliefs, and not the constitutionality of indentured servitude.


  • It’s not servitude. After all, they chose the business, they typically set the prices, and they can always go work at walmart…

    • cecil, that’s nonsense. Part of the concept of freedom is that the government does not get to impose unconstitutional restrictions on one’s ability to enter into a profession.

      There are fair debates about line-drawing and the reach of conscience clauses or the reach of the First Amendment, but your comment, assuming it’s not just to be trollish, displays a remarkable lack of respect for the freedoms we are supposed to enjoy.

  • I can understand where there is some animosity with respect to the loss of freedom and this notion that soi-disant sensible people get to make the rules–but the “you will be made to love the gays” displays a personal hostility that seems like it would have been better left unwritten.

    • I agree it doesn’t come off well. But I think it might be inspired by some of the positions taken in this issue, criticized most visibly by Scalia in Obergefell: “[The Court knows] that limiting marriage to one man and one woman . . . cannot possibly be supported by
      anything other than ignorance or bigotry.” I think it’s positions like the one Scalia believes the majority takes that makes some feel like it’s hate or love, with no other options.

      • I agree that what triggers the negative reaction is the obnoxiousness of having an orthodoxy when it comes to things like this.

  • @Spo where is the line between a loaf of bread and a work of art? How expressive is a automobile mechanic’s work? How do you determine fairly which businesses can choose their customers and which have to take whomever walks in the door? Maybe i’m a bit trollish, but I am really interested in what is the bright line rule? Who has to sell to blind guys and who can tell me to take a hike? We have already determined that their web site doesn’t have to be useable by me… And yes, that is a different topic, sorta, but sorta not… What’s the difference between the baker not wanting to sell queer cakes, an interior decorator not wanting to work in “that” part of town, and the pool hall owner not wanting a blind guy and his dog coming in for a beer? Get beyond the phrasing and scenario, does anyone have actual answers that leave each of us free and rettaining life, liberty and the pursuit of happiness?

    • “@Spo where is the line between a loaf of bread and a work of art? ”

      It’s the difference between a pre-made standard off the shelf product and a one-off custom piece.

      “How expressive is a automobile mechanic’s work?”

      The mechanic who changes your oil and fixes your radiator? Not at all.

      The guy who builds one-off custom hot-rods? Very expressive.

      “How do you determine fairly which businesses can choose their customers and which have to take whomever walks in the door?”

      Which businesses is the wrong question. The question to ask is what is the service the customer is looking for?

      One of may basically identical widgets, then the business must sell to anyone.

      Limited edition or one of a kind widgets made on speculation for sale, sell to anyone.

      If the customer is looking for custom work, then some allowance for religious or conscientious objectors should be made.

      “Maybe i’m a bit trollish, but I am really interested in what is the bright line rule?”

      Maybe there isn’t one and you just have to live with that. SCOTUS has explicitly rejected bright line rules in some areas, even while embracing them in others.

      For me, that line is one-off custom work.

      Contrary to your comment earlier about text/verbal content, SCOTUS has explicitly given first amendment protection to purely visual arts at least in other contexts.

    • cecil, to a certain extent, the answer is the First Amendment, which, yeah, protects some uncool viewpoints and refusals based on such uncool viewpoints. The Framers choose to enshrine free exercise and free speech in our Constitution which means some people’s feelings will be hurt. Thus, the answer is that the line must be drawn with the view that freedom is the categorical imperative, not some balancing between the statutory rights and freedom guaranteed by the Constitution.

      Your question is akin to a question about whether some guy who actually did it, but is acquitted, can be re-tried: “Well, should some guy who did it get away with it?” “What about the hurt suffered by the victims’ families?” At the end of the day, the answer is “So what?”

      I suspect you know this. No one thinks a portrait painter can be forced to show up at a same-sex wedding.

  • “We have already determined that their web site doesn’t have to be useable by me…”

    Not completely. My main concern is that legal (as in can be enforced in court) requirements for web accessibility if any should be created through formal legislative or agency rule making procedures. They should not be created piecemeal by the courts.

    Any for all you point to “standards” established by non-governmental organizations, the courts would not be obligated to adopt those standards, even in ruling in favor of a plaintiff that based their case on those standards.