Cake Fight: SCOTUS Decision in Masterpiece Does Not Turn on Expression

Because I opened my big maw in December when the Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, I feel compelled to follow up now that the Court has ruled. In a 7-2 decision, SCOTUS held that the Colorado Commission failed to meet the standard of “neutrality” when considering baker, Jack Phillips’s appeal to his First Amendment right of religious exercise by refusing to create a wedding cake for the marriage of Charlie Craig and Dave Mullins.

Subsequent to this widely-reported story, a Christian activist named William Jack entered three different Colorado bakeries, each time requesting cakes with anti-gay messages. All three bakers were willing to provide the religious designs Jack requested, but all three refused to include writing or specific design elements that directly maligned homosexuals. Jack complained to the Colorado Civil Rights Commission, and the majority opinion of the Supreme Court held that the Commission was correct in upholding the three bakers’ right to refuse Jack’s requests but that, by contrast, the Commission failed to apply the same, neutral reasoning when considering Phillips’s defense for refusing to make a cake based on his beliefs.

As indicated in my first post, this story intrigues me because, as a secularist, I am always interested in religious-freedom cases, and because Phillips’s particular defense entails religious exercise through artistic expression. While I have little patience for religious zealotry—let alone as an excuse for discrimination against anybody—I fully endorse the constitutional obligation that the state must remain neutral about religious beliefs just as it must remain neutral about my non-religious beliefs. Then, assuming we all agree that the state should never compel anyone, including artists, to express themselves, my earlier post engaged in a little thought exercise to consider whether, from a copyright perspective, a court could hypothetically consider Phillips’s cakes to be a form of creative expression.

This was to entertain two thoughts: first, that copyright at least provides the court with a legal rationale for considering “artistic expression”; and second, because I suspect the more this case rests on artistic expression, the narrower its implications should be. My own theory was that if certain cakes can be considered artistic expression, then a) the state can’t compel their making; but b) this case would provide very limited precedent for other proprietors to claim nearly any business activity as religious exercise. Though the first obvious exception would be wedding photographers, whose images are legally “expressive” because they are copyrightable.

Although none of the five written opinions mentions copyright (no surprise there), and the judgment itself does not turn on the issue of expression in a wedding cake, the creativity question does weave in and out of the deliberations. In fact, it is Justice Thomas whose opinion explores Phillips’s free speech claim, and which contains observations that might sound familiar to anyone who has read copyright opinions. For instance, he notes that we recognize non-literal artistic expression, thus:

“To determine whether conduct is sufficiently expressive, the Court asks whether it was ‘intended to be communicative’ and, ‘in context, would reasonably be understood by the viewer to be communicative.’ But a ‘particularized message’ is not required, or else the freedom of speech ‘would never reach the unquestionably shielded painting of Jackson Pollack, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.’”

In this comment, Thomas disagrees with his colleagues’ contrasting the literal, written statements that the three bakers refused to make for Jack with the non-literal, potential for expression in Phillips’s wedding cakes. Further, Thomas writes the following passage, which could almost be an excerpt from an opinion of the 19th or early 20th century considering copyrightability of a new medium:

“Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding.”

Except for the reference to delivery, Thomas’s finding evidence of creative expression in the various aesthetic choices and specific arrangements of materials is doctrinal in copyright law today. So, although the Court’s judgment in Masterpiece does not emphasize the issue of expression in a cake, I think the subject remains a question that has lingering implications with regard to the potential civil rights precedent inherent to this case.

The main point of contention between Justice Gorsuch (concurring) and Justice Ginsburg (dissenting) is whether the cake design actually matters at all. Ginsburg contends that Phillips refused to make a cake (the design of which had not yet been discussed) that he would have made for any wedding other than a same-sex marriage. Hence, he discriminated directly against customers in a protected class, and the cake’s design—artistic or otherwise—had nothing to do with his decision. By contrast, Ginsburg observes that the other three bakers refused to make specific designs, with literal messages, that they would have refused no matter who the customer was—hence, they were not discriminating against Jack for his religious views.

Justice Gorsuch disagrees, contending, “In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending to honor a personal conviction.” I admit that’s a head-scratcher. In my view, Gorsuch’s refusal to see the distinction is where his opinion may provide some precedent for a future party to claim “religious exercise” as a rationale for circumventing public accommodation laws protected by the 14th Amendment. But this would seem to depend considerably on whether Phillips’s cake is in fact expressive despite its being non-literal.

Clearly, the other three bakers scorned the explicit messages Jack had requested and not his religion. In fact, I believe there is no evidence indicating that those three bakers are in any way hostile to Jack’s religion. For all we know, they may even have some denominational kinship with him, but so what? If another atheist asked me to ghost write an article denouncing all religious people as pedophiles, I’d refuse the assignment because the requested content is patently offensive and dumb.

Similarly, if a customer whose religion, sexual orientation, even race or gender, is unknown to the proprietor when he/she enters a cake shop and asks a baker to design a cake with minstrels on it, isn’t the baker allowed to say he doesn’t feel comfortable complying—even without knowing anything about the customer as an individual? Of course he is. The minstrels are a literal form of expression with meaning filled with racist connotations.

By the same token, Phillips is entitled to refuse to design a wedding cake he would consider inartistic, even at the request of the most devout, Bible-thumping, gay-bashing, Christian couple ever to take their vows. Correspondingly, then, Justice Ginsburg’s dissenting opinion is well-reasoned: that Phillips’s refusal even to discuss a design with Craig and Mullins was predicated solely on his knowledge of their sexuality. But that reasoning would appear to be undermined if all of Phillips’s non-literal wedding cakes, even those not yet designed, were assumed to be expressive.

Claiming Artistic Expression

Of course, the harder Phillips clings to his claim of being an artist, the more he must play by the artist’s rules. One of these rules is that once the creator makes a work, he has little control over what the observer will think of the work, least of all whether the observer will recognize anything related to what the artist felt while making it. If an equally-skilled baker made masterful cakes while thinking about the various ways science debunks the Bible, would a reasonable observer be able to tell the difference between the religious cake and the irreligious one?

That’s the part where Phillips is trying have his cake and…y’know. His assertion that his wedding cakes are an artistic expression rooted in his religious faith is perceptible only to him and not to the dispassionate observer of the cake by itself. Thus, when Justice Thomas refers in his opinion to the symbolism of wedding cakes in general, this may be true, but it does not seem relevant to support Phillips’s very narrow claim that each of his wedding cakes is specifically an expression of his religious beliefs. Mindful that Phillips has no doubt made cakes for couples who’ve transgressed against a wide range of Scriptural doctrine, once a work of art is out there, the observers decide what, if anything, it “means.”

Still, as a copyright advocate, I find it hard to completely dismiss Phillips’s claim for the simple reason that copyright itself assumes a metaphysical relationship between the author and the work. If indeed there is some invisible—often hard to define—bond linking the creator’s mind, heart, soul, and body to the final artistic product, then we have to accept the creator’s own understanding of that bond, whether it’s religious, sacrilegious, intellectual, emotional, or even insane.

The unaddressed aspects of this judgment leave us with the paradoxical discussion that the state does not get to determine what constitutes a sincerely held belief, and neither does it get to judge if and when a belief is felt by an artist to be an inspiration for his expression. And other than the statutory confines of copyright law, the state also has no business determining what is and is not “creative expression.” For better or worse, the Court in Masterpiece alluded to but did not answer any of these questions. Though I sincerely doubt society is done asking them.

Photo by topnatthapon

© 2018, David Newhoff. All rights reserved.

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