Tag: gay rights

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

On Cake, Creativity, & Religion in America

Today, the Supreme Court will hear oral arguments in the case Masterpiece Cakeshop v. Colorado Civil Rights Commission, a.k.a. “the wedding cake case.”  In 2012, baker and cake designer Jack Phillips of Masterpiece Cakeshop in Lakewood, CO informed David Mullins and Charlie Craig, that he would not make a new cake for their wedding due to his Christian belief that same-sex marriage is a sin.  This circumstance will look to many like a 14th Amendment, equal-protection case—one fraught with emotion for the LGBT community and those of us who defend gay rights. But, this particular conflict may be a bit trickier than it appears.

It is my own view that the most important elements of the First Amendment—a true master stroke for the late 18th century—are the balancing forces of the exercise and establishment clauses.  In recognizing the slaughter-bench that religion had made of Europe for centuries leading up to the American experiment, the relative harmony achieved by simultaneously rejecting a national religion and protecting the free exercise (or no exercise) of a plurality of beliefs is central to the function of all other civil rights in the United States.  After all, if there were a state religion, or if we failed to protect a diversity of views, the rights of free speech or a free press would be utterly meaningless.

In this regard, the current trend that seeks to upset constitutional balance by asserting the exercise of one religion (Christianity) over secular laws like the 14th Amendment is toxic beyond the immediate issue of gay rights affirmed in Obergefell.  For instance, Rep. Labrador’s proposed First Amendment Defense Act (FADA) would be a legislative end-run around equal protection that would empower a landlord to refuse housing; an employer to refuse a job; or a doctor to refuse treatment to citizens in same-sex marriages.  But in addition to being a transparently bigoted proposal, it is more broadly an assertion that the Book of Leviticus supersedes the Constitution; and I would caution even the most ardent Christian Americans to be careful what they wish for.  Such views tore nations apart for much longer than U.S. has existed.

So, while I am personally adamant, to say the least, that secular law always prevails over religious “law,” it is precisely because of this principle that I wonder if Phillips’s argument in the “wedding cake” case may be more difficult than it appears.  My right as a secularist to publish this post is codependent with protecting Phillips’s right to speak (or not speak) in accordance with his views. The speech protection cannot discriminate based on the motives of the speaker, which brings us to the question of whether Phillips’s cakes can reasonably be called creative expressions.

How creative is a wedding cake?

If I understand Phillips’s argument correctly, the issue in this case is far more subtle than a typical 14th Amendment conflict in which a proprietor outright refuses service to a customer based on some form of discrimination.  According to this account in Reuters, Phillips did not demand that Mullins and Craig leave his shop, and he offered them other products that had already been made.  What Phillips refused to do was to take up his creative brush, as it were, to make what he feels would have been a new artistic expression celebrating an event he cannot endorse. In short, what makes this case distinctive from, say, a mechanic refusing to fix the couple’s car, is that Phillips may be standing on fairly solid free speech ground if the service he refused to provide is held to be creative enough under the law.

Writing as someone who despises both bigots and “religious-freedom” laws but defends artists, copyright, and free speech, I have to admit that Phillips’s claim is not entirely dismissible simply because I reject his point of view.  Although a cake is too temporary a medium to qualify for enforceable protection under copyright law, copyright principles may still be instructive to a legal interpretation of his claim that his cakes are artistic expressions. This is because the design, painting, and arrangement of elements on the cakes could very likely meet the modicum of creativity standard required to call Phillips’s pictorial, sculptural, & graphic (PSG) work “original” in a copyright context. This may be relevant because a court, which has no business acting as cultural critic (i.e. deciding what conduct is or is not “artistic”), can look to copyright law for guidance as to what defines “creative expression” in a legal context.*

So, if it can be established that Phillips (or any baker with his level of skill) is engaged in creative expression while designing one of these cakes, then his free speech argument has merit, regardless of the discriminatory nature of the religious belief behind the speech. Under this analysis, the obvious problem with a holding against Phillips is that it would set a precedent whereby a different creative cake-maker could not refuse to make one of her expressions to celebrate a party for the Ku Klux Klan.  Or what if the medium is more permanent than a dessert?  What if the artist is a portrait painter or photographer?  Does the 14th Amendment require that the artist accept a commission to make a portrait of some figure who represents something he reviles? Certainly, most people would agree that equal protection for the customer, in this case, does not supersede the artist’s speech right to refuse to create the work. Like it or not, the rationale may be the same if the “canvas” is a cake.

Michelangelo hated painting the Sistine Chapel.  As beautiful as it is, there is an extent to which the entire undertaking is not his expression of choice, but rather an expression of his especially thorny relationship with the Medici and the Roman Church. His life exemplifies the precarious relationship many artists had with society and religion throughout most of western history. It was not until the late 19th century that art truly began to assert itself as something distinct from doctrines of morality; and one role copyright has played in that narrative is that it allowed the artist freedom to express herself without the constraints of patronage, religion, or government, which were usually intertwined.  But in order to protect this principle of artistic independence, we probably have to uphold the rights of all creators equally, whether their personal motives are secular or religious — or even unkind.

Laws designed to protect “religious freedom” like the FADA bill are extremely dangerous in my view because they upset the very delicate balance between exercise and establishment that I truly believe is the yin/yang of American civil liberties. But equally dangerous is any precedent that would coerce an individual to speak in a manner that he does not choose. Like religious-freedom laws, a victory against Phillips in this case could have some nasty, unintended consequences for creative expression.  So, as strenuously as I would use my speech right to defend the right of Mullins and Craig to enjoy equal protections, I am likewise sure that—if Phillips is held to be conducting creative expression—he cannot not be compelled to express himself for any reason.

Personally, I think people like Phillips who cherry-pick Leviticus as an excuse for discrimination are fundamentally mean-spirited and crazy (I mean have you read Leviticus?) And the kind of political figures and institutions who support this beatified baker are generally a threat to democratic principles (and some of them are pedophiles it turns out). I’d be happy to see these people lose.  But as a matter of dispassionate analysis, it may not be so easy, or even desirable, to define Phillips’s cakes as non-expressive; and it will be interesting to see what the Court makes of this argument.

ADDENDUM:  To look at this in another way, if copyright’s principles were to define Phillips’s cakes as creative expressions, then those same principles also provide boundaries that should prevent this case from serving as precedent for a broader range of “creative” services (e.g. floral arrangement).

*See this post about Star Athletica v Varisty and the subject of separability.  Based on Justice Ginsberg’s opinion, Phillips could theoretically register his designs with the USCO using another medium like paper prior to applying them to the cakes.

Photo by ivonnewierink