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Symposium: Commercial products as speech – When a cake is just a cake

Mary L. Bonauto is the Civil Rights Project Director at GLBTQ Legal Advocates & Defenders.

This case is not really about a cake. It is about equal citizenship of gay people, and whether we may engage in the kinds of ordinary transactions others take for granted in the commercial marketplace and beyond. Will moral objections to who we are and whom we love be accorded constitutional supremacy over ordinary human decency, over the Golden Rule, over the long-standing American rule of businesses dealing with all comers? Will these objections justify closing the door on LGBT people and, once again, marking them – including the youth who had begun to hope that they could live a full life – as outcasts and inviting further discrimination?

To circumvent the demands of equality, both Masterpiece Cakeshop and the Department of Justice as amicus seek to draw new constitutional lines about speech in the marketplace – either as “pure speech” or “expressive conduct” – because of the personal creativity that can be involved in making products for sale or providing services. A wedding cake is “not an ordinary baked good; its function is more communicative and artistic than utilitarian,” the government writes.

But exempting businesses from anti-discrimination laws based on personal creative efforts in making a product or providing a service creates a massive hole in those protections. Throughout our existence, humans have used their hands to design, cut, shape and mold products, whether with clay, stone, cloth, metal or edible substances. Earning a living from the sweat of one’s brow coexists with human creativity, with the passion for cutting hair or cooking food, with designing and sewing clothing – with making something both functional and beautiful. Uplifting the dignity and creativity in all work, Dr. Martin Luther King spoke of the “street sweeper” who could “sweep streets like Michelangelo painted pictures; sweep streets like Handel and Beethoven composed music; sweep streets like Shakespeare wrote poetry.” Studs Terkel’s 1970s classic “Working” speaks to the human drive to act and create distinctively, even in mundane tasks, and how the inability to do so feels like imprisonment. And yet we have never equated the human creativity involved in producing a myriad of products and services for public sale as grounds for denying the sale of those products or services to a class of customers because of who they are.

The cakeshop’s counsel says the bakery’s owner “intends to, and does in fact, communicate through” the cakes the bakery sells. However, most of us would think that the message of a special occasion or celebration is the message of those marking the occasion – those celebrating – who plan and even choreograph their event, and know what and why they are celebrating. Not just the baker, but all vendors are the conduits for the celebrants’ expression. Even a student should understand that. But inherent in the cake, the cakeshop says, is the baker’s personal message that a marriage has occurred and should be celebrated, something that is sacrilegious to him in the case of same-sex couples’ marriages.

We do not impugn the baker’s beliefs by remarking on the astonishing breadth of that claim. We have never thought that a bakery takes a position one way or another when making and selling a cake to celebrate a wedding, bat mitzvah or first communion, a baby shower or a birthday celebration. Under the test advanced by the cakeshop and DOJ, a bakery could refuse an order for a baby-shower cake when a married same-sex couple is expecting their first child because the baker believes this birth should not be celebrated, and that a same-sex couple should not be the child’s parents.

The cakeshop claims a willingness to sell “pre-made” products to gay people, but wouldn’t the proposed rule allow a bakery to refuse any cake order for same-sex couples because serving them could be construed as showing support for them as they reach milestones in their shared lives? Under that rule, a copy shop could refuse to print birth announcements for same-sex couples, and a funeral home could deny funeral services to a same-sex spouse, as one did not long ago. For this and other reasons, the status (being LGBT) versus conduct (marrying) distinction the cakeshop relies on is chimerical. Gay people marry other gay people, and a new, constitutionally-based objection to conduct and marriage could be wielded far more broadly.

Looking beyond this case, it is clear that although the present controversy may focus on marriage and same-sex couples, if the Supreme Court were to accept a rule that simply providing commercial goods or services conveys a message of approval and endorsement that cannot be compelled, then public-accommodations protections will evaporate and many will suffer. Would vendors who sew gowns, design place-setting graphics, perform music, cater the food or decorate the wedding limousine have free rein to deny wedding services to Jewish and Muslim couples who do not accept Jesus Christ as their lord and savior, to Christians who do, and to those customers lacking any faith at all? Whether a product or service is wedding-related or not, if its production, sale or delivery is seen as freighted with messages of approval and endorsement, then many or most places of public accommodation can be swept in.

Faced with the real threat that businesses will be emboldened to deny service beyond the facts of this case, we know only that DOJ (rightly) believes “eliminating private racial discrimination” is a sufficient interest to justify application of a public-accommodation law to an objector. Many of us would have hoped that DOJ would recognize that gender, religion, national origin and sexual orientation are also important interests, as do many state legislatures. Yet the federal government has all but stated that preventing harm to gay people is barely an interest at all.

Nor is there any reason to think that this rule would not reach all civil-rights laws. Why, for example, would laws prohibiting sex discrimination still foreclose a male business owner from refusing to hire women, married or unmarried, if his religion instructs him that they should be at home and not in the workforce, or if he asserts that requiring him to hire women would express something contrary to his beliefs? And what of the landlord who renovates and rents apartments?

To support its argument that requiring a baker to make a wedding cake is compelled speech, DOJ maintains that each product has a life of its own that carries messages of its originator, who may therefore be seen as compelled to “literally” or “figuratively” participate in the event when they have made a product “that performs an important expressive function in the ceremony.” The cakeshop and DOJ rely heavily on Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston and Boy Scouts of America v. Dale. But a for-profit business open and selling goods to the general public is neither a private parade marching to make a point, like the veterans groups organizing the St. Patrick’s Day parade in Hurley, nor a private association like the Boy Scouts, and the government can regulate businesses like the former in a way it cannot regulate the latter.

If a product does not express a particular, discernible message, or is understood not to be the vendor’s speech, the cakeshop’s compelled-speech-and-expression claim simply fails. To repeat: When a couple buys a wedding cake, it is for their wedding, their celebration, and everyone knows it is their messages that are communicated by their event and its trappings. “Customizing” products and services for events is typical because customers of all kinds want their events to feel special, to be their own. Indeed the cakeshop acknowledges that before designing a cake, a store representative “meets with the couple to learn their desires, personalities, preferences, and wedding details.” Why – other than to be sure that the cake conveys the couple’s beliefs, ideas and messages? How then can the cakeshop ask the Supreme Court to regard the cake as the embodiment of its owner’s personal beliefs and a distinct message of approval for the customers and their celebration? When all is said and done, a beautiful cake remains a cake. And discrimination remains discrimination.

Recommended Citation: Mary Bonauto, Symposium: Commercial products as speech – When a cake is just a cake, SCOTUSblog (Sep. 15, 2017, 10:24 AM),