The Troubling Issue Of Masterpiece Cakes

Masterpiece Cakeshop Is In The Wrong But Anti-Discrimination Laws Based On Orientation May Be The Long Run Danger

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is the Supreme Court case about the religious baker who refused to sell any wedding cake for a gay wedding and is now challenging the Colorado anti-discrimination laws that bar him from doing this on both free speech grounds and religious liberty grounds.

Legal Considerations

The religious liberty challenge is pretty weak (both as a moral and legal matter). Essentially, the owner of Masterpiece Cakeshop is arguing that he shouldn’t have to comply with the same laws that everyone else does just because his religion disagrees. It used to be the case that in some situations the Supreme Court recognized a first amendment right to an exception to generally applicable laws when they conflicted with religious belief. However, in Employment Division v. Smith Scalia got rid of this nonsense. As long as a law is generally applicable and isn’t motivated by religious animus the fact that it requires you violate your religious beliefs is immaterial1. As a result Masterpiece Cakeshop really doesn’t have a leg to stand on as far as the free exercise claim goes.

The free speech arguments are a bit more hefty. There is a long ling of cases that hold the first amendment bars the government from compelling you to express views you disagree with. For instance, in Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston the Supreme Court held that the first amendment protected the right of march organizers to exclude groups from their demonstration (despite contrary anti-discrimination law) when it would compromise their message, e.g., you can’t force a march against homosexuality to allow gay groups to join or a white supremacist march to include blacks. In other cases the court has held that the government can’t force students to pledge allegiance, newspapers to carry political responses for balance or PG&E to include environmental fliers in its bills.

As such, if Masterpiece Cakeshop was about the baker refusing to decorate the cake with a message they disagreed with I’m inclined to think there is a plausible argument to be made. If Masterpiece Cakeshop was willing to sell blank or generic wedding cakes to gay couples getting married there would be a strong case that requiring them to distribute messages on the cakes that they find objectionable is analogous to requiring PG&E to distribute environmental fliers it disagrees with. However, that’s not the fact patter in this case. Masterpiece Cakeshop is refusing to sell any wedding cake for a homosexual wedding.

Now there have been some heroic attempts to argue that merely providing any wedding cake at all conveys a celebratory message. However, this argument just isn’t very plausible. Certainly, wedding cakes are used as part of an event which, as a whole, sends a celebratory message but so too are the plates, silverware and chairs used at such functions. Surely no one thinks that a vendor who rents chairs for events is somehow being compelled to speak (in the way the Supreme Court has deemed unacceptable) when the law requires they deliver chairs to both gay and straight weddings. Indeed, if we accept the argument that merely because a good sold by a business will be used for an expressive purpose the sale of that good is itself expressive and thus protected from compulsion we would have to conclude that a white supremacist who owned an art supply shop had a first amendment right to refuse to sell pens to blacks as they will be used in an expressive manner (and quite likely to disapprove of white supremacy).

More broadly, there is an expressive component to all business transactions. In some sense serving black customers at a dinner expresses approval of their presence in the same dinner as whites. However, this isn’t the kind of incidental compelled expression the supreme court has identified as deserving of special protection nor should it be. When the government mandates that newspapers carry articles they disagree with the newspaper’s ability to express its desired message is seriously burdened. In contrast, when the government requires business owners to serve customers at a dinner regardless of race or sexual orientation there isn’t the same burden place on the ability of the diner owner to clearly convey his bigotry (modulo certain issues about signs2). If these brief remarks haven’t convinced you on this point I urge you to read this piece.

Policy Considerations

Alright, so Masterpiece Cakeshop deserves to lose (and almost surely will lose) at the Supreme Court. Indeed, if SCOTUS found for Masterpiece Cakeshop it would raise serious issues about the continued practical applicability of anti-discrimination laws more broadly. Many of which still address compelling needs.

However, I’m far less convinced there is any similarly compelling need for protecting homosexuals access to public accomodations like bakeries. Don’t get me wrong, I firmly believe that individuals like the owner of Masterpiece Cakeshop are deeply misguided and probably bigots3. However, such individuals are being overwhelmed by the remarkably rapid march towards greater acceptance of homosexuality.

Certainly, there are still pockets of homophobia in the country but by the time laws barring anti-homosexual discrimination in public accommodations can be enacted and have an effect in less progressive states than Colorado there will be more homosexuals than people who support discrimination against homosexuals. I don’t mean to in any way diminish just how hurtful it can be to be discriminated against but we need to balance that hurt against the burden such laws place on our freedoms. The judgement we’ve made in almost all cases is that just because something is hurtful or offensive isn’t a good enough reason to abridge people’s rights to choose whom to sell to. After all, its also quite hurtful to refuse to sell to someone because they are dumb, support abortion, or because their hipster beard looks stupid (though that may be more understandable). Those may not be quite at the same level but refusing to serve any ex-cons is closer as is any number of personal reasons for discrimination one sees in small towns.

The argument that there is a special need for public accommodation laws (as opposed to other instances of hurtful but appropriately legal behavior) stems, in the case of racial discrimination, from the claim that such discrimination is systematic, pervasive and makes it particularly difficult to dissolve bigoted attitudes. These all were, and perhaps would be again absent such laws, in the case of racial discrimination. It wasn’t just that blacks were excluded from a few venues run by marginalized bigots but systematically barred from whole classes of establishments — particularly high status establishments were power and influence get traded. The systematic exclusion of blacks from these establishments created a particularly formidable barrier to racial understanding and acceptance.

In contrast, homosexuals are only rarely discriminated against in public accommodations (I’m not suggesting that many people don’t remain closeted because of likely bigoted responses from friends and family but this is beyond governmental intervention) and usually have ample alternative venues. Those public accommodations which do discriminate against homosexuals tend to be low status enterprises run by socially marginalized assholes. The penetration of chain stores into virtually all parts of America provides high quality cheap products in a non-discriminatory fashion even in some of the most backwards regions. The opinion poll trend lines prove that even without such laws the cultural shift towards homosexual acceptance is both rapid and unstoppable. In short, virtually all the reasons for thinking that anti-discrimination laws serve a special need whose exceptional importance warrants prioritizing it over the individual freedoms of the business owner don’t seem to apply. Certainly, its awful and morally unacceptable but it doesn’t seem to be different in kind from the other awful morally unacceptable behaviors we don’t outlaw.

I certainly recognize that reasonable people can disagree on the relative value of the freedoms given to business owners as well as the substantial compliance costs, unintended harms and regulatory burdens imposed by anti-discrimination laws. However, the lack of any serious attempt to weigh the costs and benefits of such anti-discrimination laws makes me suspect that people support laws barring discrimination against homosexuals merely to signal their moral disapproval of such discrimination not based on any policy analysis.

Currently, many states as well as the federal government lack laws barring discrimination based on sexual orientation in public accommodation (hiring is a harder question IMO) so given the fact that once an anti-discrimination law is passed it is virtually impossible to ever repeal (for fear of sending the message that discrimination is acceptable) now is the time to sit down and ask whether we really want the kind of laws that lead to Masterpiece Cakeshop. If I could choose to enact such laws for a ten year period I’d probably support them but when I balance 50 or 100 years of reduced freedoms, compliance costs and unintended harms against the rapidly fading benefits I find leaning against such laws.

In short, while Masterpiece Cakeshop is clearly in the wrong from both a moral and legal perspective in the long run I fear that the well-intentioned laws that lead to this case are what we should really fear. If only there was a good way to signal our moral disapproval with sufficient strength without actually creating expensive and invasive new torts and enforcement agencies.

  1. Of course, in some circumstances we do feel that religious groups deserve a special break on a generally applicable law such as when the law is merely a matter of enforcing some uniform standard and the costs of allowing sincere religious objection is small. For instance, the purpose of a law stipulating that city employees are barred from wearing any visible clothing besides their uniform isn’t substantially impeded by allowing Jewish employees to wear a kippah (aka yamaka) and the benefit to religious individuals pretty clearly outweighs the additional hassle of having to make individual determinations of appropriateness. Congress and state legislatures have adopted RFRA laws in a (deeply flawed) attempt to ensure that, in those cases where the societal cost is small and the individual benefit large, we make exceptions. Personally, I would prefer a legal regime that was religiously neutral and simply focused on strongly held views and applied a balancing test but that’s another conversation. 
  2. As Eugene Volokh has pointed out there is a serious tension between free speech rights and anti-discrimination laws which bar vendors from expressing bigoted/sexist messages in their workplace. While being forced to serve blacks doesn’t seriously burden the owner’s freedom of expression being barred from decorating the diner with news clippings praising white supremacy, denigrating blacks and arguing for the racial inferiority of minorities does. However, this is an issue for another time. 
  3. From afar animus is hard to distinguish from compassionate belief someone is making mistaken life choices combined with a desire not to encourage further mistakes. I honestly believe some very devout catholics who truly treat homosexuality as a mistake just like adultery or premarital sex fall into the second category but such people are rare. Animus is far more common.