The Trump administration filed a brief Thursday night aligning the United States of America with a Colorado baker who refused to serve a same-sex couple. It is a stunning reversal from the previous administration, which once lit up the White House in rainbow lights to show its solidarity with LGBTQ Americans.
Yet, while the Justice Department’s brief in Masterpiece Cakeshop v. Colorado Civil Rights Commission aligns Trump politically with anti-LGBTQ groups seeking to expand their own rights at the expense of sexual and gender minorities, it also makes surprisingly modest arguments. Masterpiece Cakeshop is potentially a case of profound importance. It could establish that religious belief provides a license to violate civil rights laws. Or it could invent a sweeping, difficult-to-contain exemption to those laws for people who claim that their work is in some way creative.
The Trump administration’s brief, however, seems designed to make this case a lot smaller. It spends a surprising amount of time listing scenarios where civil rights laws would apply in full force. And it ignores altogether the baker’s argument that his religion permits him to discriminate. While ultimately unpersuasive, the brief offers what may be the narrowest possible grounds that the Court could rely on to rule in favor of the cake baker.
That argument may be enough to convince wavering conservative justices that they can safely hand the baker a win here, but it would leave the religious right with a much smaller victory than they probably hope to gain from this case.
As mentioned above, the brief takes no position on whether someone’s religious belief can give them license to discriminate. Instead, the brief focuses largely on the cake baker’s claim that he is engaged in inherently expressive activity, such that compelling him to bake a wedding cake for a same-sex couple would be just as constitutionally offensive as compelling him to loudly proclaim that he supports same-sex marriage.
To explain, the First Amendment doesn’t just prevent the government from engaging in censorship; it also forbids nearly all laws that compel someone to speak against their will. Jack Phillips, the baker at the heart of this case, claims that his wedding cakes are a kind of expression. “His custom cakes,” Phillips’ attorneys write in his own brief, “necessarily express ideas about marriage and the couple.” They “declare an opinion . . . that the couple’s wedding ‘should be celebrated.’”
The Trump administration’s brief largely agrees with this claim, as it agrees with Phillips that requiring him to bake a custom wedding cake for a same-sex couple violates Phillips’ free speech rights, but it calls for a fairly narrow carve-out from civil rights laws for people like Phillips. A civil rights law runs afoul of the Trump administration’s rule only when it “compels both expression and participation in an expressive event.”
Indeed, the brief goes to great pains to list examples of vendors that would not benefit from this rule. “Most commercial transactions will fail to satisfy the threshold requirement that the product or service be inherently communicative,” Acting Solicitor General Jeffrey Wall’s legal team writes, “and even expressive products or services will rarely involve the degree of custom work necessary to suggest either compelled creation or active participation in an expressive event.”
Wall adds that, “for those businesses that create inherently expressive products, public accommodations laws may permissibly require them to conduct transactions involving pre-made or off-the-shelf products.”
Yet, while this distinction may lower the stakes in Masterpiece Cakeshop to the point where five members of the Supreme Court are willing to side with the baker, it is hard to justify as a matter of law. As the Justice Department concedes in its brief, “whether governmental compulsion creates an association with an unwanted message depends on a reasonable observer’s perception of the relevant expression.” DOJ then applies this framework to two different hypothetical cases.
If, for example, a hotel is forced to provide a table and chairs . . . it acts as a mere conduit to effectuate another’s expression. As a result, provision of that good or service does not suggest to a reasonable observer that the provider supports the ceremony or event at which the good or service is used. The opposite, however, is true of a musician hired to perform a love song at a wedding ceremony. His personalized contribution would reasonably be perceived as a signal that, at a minimum, he does not oppose the marriage.
Think back to the last wedding you attended that featured a live band. When the band began its first slow song of the evening, did you come away with the impression that the singer was serenading the couple because he or she wanted to express a message about the validity of their marriage? Or did you simply think that the members of the band earn a living by playing music and the happy couple were willing to pay the band’s fee?
And why, for that matter, does the singer’s willingness to sell their services to the newlyweds convey greater meaning than the vendor that provides the table and chairs? Sure, one activity involves a creative component while the other is merely a “transaction involving pre-made or off-the-shelf products.” But if the singer conveys a message when they take the couple’s money, why doesn’t any other vendor?
An equally vexing problem is that the line between inherently creative ways of earning a living, such as being a musician, and more rote work, like renting chairs, is much less clear cut than DOJ suggests. Consider, for example, Katzenbach v. McClung, a seminal case establishing that the federal ban on whites-only lunch counters is constitutional. McClung involved Ollie’s Barbecue, an Alabama establishment that refused to serve African Americans in its dining rooms.
As nearly anyone from the South will tell you, producing barbecue can be a deeply expressive activity. Local variants on the Southern staple are a huge source of regional pride. Chefs may spend years developing their technique and experimenting with different kinds of sauces and cooking styles. A barbecue shack in rural Arkansas won a James Beard Award, a roughly the equivalent of the Oscars for chefs.
So if a barbecue chef designs a custom menu for a private wedding, is that an expressive activity worthy of First Amendment protection? What if they merely tweak their sauce a little at a customer’s request?
In fairness, DOJ’s framework provides that the First Amendment is only implicated when a civil rights law touches on an expressive activity and requires “participation in an expressive event.” But here, as well, the line between expressive and non-expressive events is hard to draw with precision.
In Birmingham, Alabama in 1964, the act of serving African Americans at the same lunch counter with white customers was a profoundly expressive act. It conveyed a message of outright defiance towards the Jim Crow South’s racist culture. Had Ollie’s Barbecue voluntarily integrated its dinning room, it could have driven off racist white customers. It could even have potentially subjected the restaurant to Klan violence.
An objective observer in Jim Crow Alabama would be far more likely to perceive Ollie’s Barbecue’s decision to treat black and white customers equally as an expressive — indeed, even a radical — act, then they would be to perceive Jack Phillips as engaged in some kind of expression because he agreed to take another couple’s money in exchange for a service that he routinely provides.
So, while the Justice Department attempts to make a victory for Phillips more tolerable to marginal justices by making the potential implications of that victory smaller, DOJ’s brief also runs aground on the shores of unmanageable distinctions and a limiting principle that proves much less limiting than it initially appears. It offers a clever argument — perhaps, even an argument that is clever enough to sway Justice Anthony Kennedy — but it will create a lot of trouble if it succeeds.