Opinion: Even if baking a cake is speech, it should not outweigh Civil Rights - The Denver Post

Have you ever ordered a sandwich at Subway? If so, you may have noticed that the workers are called “sandwich artists.”

Are they artists in the true sense of the word? Are they somehow expressing something when they put together the sandwich precisely as you request it?

Instinctively, many of us would say “no.” Slapping cheese, meat, and condiments onto bread does not seem like the sandwich makers’ speech, especially when they are simply following the customer’s instructions. But the Colorado Supreme Court is considering a case not far removed from that hypothetical. The case has significant implications for non-discrimination protections not only in Colorado but beyond.

In Masterpiece Cakeshop, Inc. v. Scardina, the bakery, Masterpiece Cakeshop, refused to make a cake for Autumn Scardina after she disclosed she was transgender. Specifically, Scardina asked Masterpiece to make a custom pink birthday cake with blue frosting. There were no other design elements, words, or messages on the cake. Masterpiece first agreed to make the cake. But once Scardina disclosed to the bakery that the cake colors celebrated her gender transition from male to female, the owner declined to make the cake, claiming that doing so conflicts with the owners’ religious beliefs.

The refusal arguably violates the Colorado Anti-Discrimination Act (CADA), which prohibits discrimination on the basis of gender identity. Masterpiece, however, contends that being required to make the cake would compel expressive speech contrary to their religious beliefs in violation of the First Amendment. To be protected by the First Amendment, the compelled act must be “speech,” in that it must be expressive.

If the court holds that there is a First Amendment violation, then enforcement of Colorado’s prohibition on discrimination on the basis of gender identity (and other bases, such as gender, race, or sexual orientation) will be significantly curtailed.

How did we get here, where courts are asking whether baking a cake is speech?

This isn’t Masterpiece Cakeshop’s first rodeo. Previously, it was victorious at the U.S. Supreme Court in a case where the owner also refused to make a cake, this time for a same-sex wedding. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the U.S. Supreme Court narrowly concluded that members of the Colorado Civil Rights Commission demonstrated hostility to the religious convictions of the owner, Jack Phillips, when they ruled he had discriminated against the same sex couple who had filed suit.

More relevant to the current Masterpiece case, however, is the U.S. Supreme Court decision in 303 Creative LLC v. Elenis. In yet another LGBTQ+ rights case out of Colorado, the Court held that the First Amendment can outweigh civil rights protections. In that case, a web designer refused to create a bespoke wedding webpage for a gay couple given her religious objections to same-sex marriage. While a clear violation of CADA, the Supreme Court nevertheless allowed 303 Creative to refuse to create the webpage. According to the Court, the webpage design was expressive and thus protected as speech by the First Amendment.

The holding in 303 Creative reaches far beyond concerns of religious liberties. Under the Supreme Court’s reasoning, any business could deny a putatively speech-producing service to a person belonging to a protected class simply because it is philosophically or politically opposed to that group. Religious objections are not necessary.

The key inquiry for the intersection of non-discrimination protections and the First Amendment is whether the relevant acts qualify as speech due to their expressive character. Speech extends beyond the spoken or written word. The U.S. Supreme Court generally has taken an expansive view, including things like flag burning, arm bands, and parades.

The question before the Colorado Supreme Court is whether baking a cake as directed by the client constitutes expression by the baker. To us, this case is more like the Subway Sandwich Artist. You tell the Artist what you want on the sandwich, and they make it. No expression is involved. Similarly, the baker was given specific directions for the color of the cake. There was no creative input on the baker’s part, nor was there a message included on the cake. Indeed, as the Colorado Court of Appeals observed, Phillips agreed in general that a pink cake with blue frosting has no “particularly inherent meaning.”

There may be circumstances in which businesses’ services involve expression of their own, but this isn’t one of them. The Colorado Supreme Court has this route to conclude that the denial of services to Scardina should violate CADA on this narrow ground, which is what the Court of Appeals concluded.

This approach would leave unanswered a broader question: what if the baker did provide input into the design of the cake, like the webpage designer in 303 Creative? The Colorado Court of Appeals reasoned that “this act of creating a custom cake … is inherently expressive and therefore entitled to First Amendment protection.”

Regardless of this assessment, we think there is still space for a broader ruling: that the non-discrimination protections at stake in the case survive First Amendment review. Even if the Court decides the pink and blue cake is Masterpiece’s speech (rather than Scardina’s), the interest in protecting people from outright discrimination based on gender identity outweighs any speech interests at stake in these cases.

In legal jargon, the CADA survives strict scrutiny because it is narrowly tailored to advance a compelling state interest: stopping discrimination in the commercial sphere against people based on their sexual orientation, gender, gender identity, race, and other protected classes. The laws are narrowly tailored because such prohibitions are the only means to eliminate discrimination in public accommodations. That interest is unrelated to speech regulation.

Thanks to the U.S. Supreme Court, courts will have to discern what constitutes protected “expressive” versus unprotected “non-expressive” conduct in various commercial settings to determine whether a party can discriminate. 303 Creative has sent us down a rough path that hopefully the Colorado Supreme Court can help smooth.

Tim Holbrook and Alan Chen are both professors of law at the University of Denver Sturm College of Law.  Holbrook is an advocate for the LGBTQ+ community and served as co-counsel for former National Football League players supporting marriage equality. Chen is a leading national expert in free speech and the First Amendment.

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