Cake, religion and Summa [obscenity deleted] Laude

We didn’t make this up: a proud mom ordered a cake to celebrate her son’s graduation “Summa Cum Laude.”  The bakery took it upon itself to eliminate the obscene word “cum,” and replace it with dashes, as shown above.

Can’t be too careful these days. A celebratory cake was the subject of the just-now-decided Supreme Court case Masterpiece Cakeshop where a Christian Evangelical baker declined to create a wedding cake for a gay marriage ceremony, while offering to provide the couple with any other kind of baked goods. The Colorado Civil Rights Commission called the baker’s religious scruples “a despicable piece of rhetoric” of the sort used to justify slavery and the Holocaust, and enjoined him from making any wedding cakes unless he agreed to provide them for same-sex marriages. As a result, his mom-and-pop bakery lost nearly half of its business.

The Supreme Court decision cannily focuses on the Commission’s hostility to religion while ducking the issue of compelled speech. Justice Kennedy, duly invoking the dignity, respect etc. due to same-sex couples, nevertheless concluded that sneering at the baker’s beliefs “was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”

It’s hard to know what this limited decision means for the baker.  Presumably any same-sex couple can request a wedding cake and sue him again if he refuses, this time in front of a Commission that’s learned to be more politic in its language.

While not sharing the baker’s beliefs, we sympathize, knowing what it’s like to be hounded by a junta of “the offended.” Justice Thomas’s concurrence, recognizing that the right to speak entails the right not to be compelled to express unwanted ideas, says it all (citations omitted):

States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.

A contrary rule would allow the govern­ment to stamp out virtually any speech at will.  After all, much political and religious speech might be perceived as offen­sive to some. As the Court reiterates today, “it is not . . . the role of the State or its officials to prescribe what shall be offensive.” Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.

If the only reason a public accommodations law regulates speech is “to produce a society free of . . . biases” against the protected groups, that purpose is “decidedly fatal” to the law’s constitution­ality, “for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.”

Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails. “A speech burden based on audience reactions is simply government hostility . . . in a different guise.”

Consider what Phillips [the baker] actually said to the individual respondents in this case. After sitting down with them for a consultation, Phillips told the couple, “I’ll make your birthday cakes, shower cakes, sell you cookies and brown­ies, I just don’t make cakes for same-sex weddings.” It is hard to see how this statement stigmatizes gays and lesbians more than blocking them from marching in a city parade, dismissing them from the Boy Scouts, or subjecting them to signs that say “God Hates Fags”—all of which this Court has deemed protected by the First Amendment. . . .

Nor does the fact that this Court has now decided Obergefell v. Hodges somehow diminish Phillips’ right to free speech. “It is one thing . . . to con­clude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted and unentitled to express a different view.”

This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individ­uals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself emphasized that the traditional understanding of marriage “long has been held—and continues to be held— in good faith by reasonable and sincere people here and throughout the world.”  If Phillips’ continued adherence to that under­standing makes him a minority after Obergefell, that is all the more reason to insist that his speech be protected. “T]he fact that [the social acceptance of homosexuality] may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view.”

Masterpiece Cakeshop v. Colorado Civil Rights Commission (Thomas, J., concurring).

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9 Responses to Cake, religion and Summa [obscenity deleted] Laude

  1. Wasserman, Roy says:

    In this instance, you are quoting the less reasoned decision. RBG’s dissent once again presents a brilliant and superior analyses to the majority. Like RBG, I am a pretty pure free speech advocate, as I know you are. She points out that this was not a speech case. This is about public accommodations. The baker objected to making ANY cake for same sex couples, not to any message requested on a cake. ( Any message on the cake btw is requested by the customer and thus belongs to the voice of the customer ordering it, not the typist (icingist?). Would it be OK for a restaurant owner to agree to serve ham and cheese to Jewish customers, but refuse to sell them pastrami (heresy!)? Could a hotel deny people of color the presidential suite? Public accommodations must serve all customers all of their services equally. Otherwise, the door is open for all kinds of bigoted mischief in the marketplace. Read RBG’s dissent. I am sympathetic toward the argument that the commission was hostile toward religion, but I don’t think that has any constitutional bearing.

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    • Yes indeedy, we’ve read not only St. Ruth’s dissent but the record below. See our previous post,”The Case of Masterpiece Cakeshop.”
      You’re mistaken in saying that the baker “objected to making ANY cake for same-sex couples.” On the contrary, he offered to make them any other kind of cake, but explained that he regarded creating a custom cake for a same-sex wedding as an endorsement of a ceremony that went against his religion.
      Yes, a bakery is a public accommodation, just like the St. Patrick’s Day parade in Hurley where the SCT held that the organizers couldn’t be forced to include an LGBT contingent because that would alter the expressive content of the parade. Similarly, the baker’s creation of custom wedding cakes is expressive. “The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message. By forcing Phillips to create custom wedding cakes for same­-sex weddings, Colorado’s public-accommodations law alters the expressive content of his message.” Read Thomas’s dissent.
      You’d understand it better if a Palestinian baker were sued for anti-Semitism for declining to create a cake celebrating the founding of Israel.

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  2. Robert says:

    Bless you, Appellate Squawk, for causing me to waste some perfectly good work time–your blog always makes my day, and it always causes me to think more deeply about other areas of the law where my daily grind does not lead me. Illegitimi non carborundum and all that–please keep on keeping on!

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  3. Alex Bunin says:

    You never hear about any First Amendment problems with pie.

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  4. Hornbook Law says:

    “Like RBG, I am a pretty pure free speech advocate, as I know you are. She points out that this was not a speech case. This is about public accommodations. ”

    First, Ginsburg is not a “pure” free speech advocate. She tends to be better than some of the others but there isn’t any pure free speech advocate on the court, period. More importantly than that quibble, however, is the reality of the dark art of judicial framing. Any free speech case can be redescribed into something else. Flag burning wasn’t about speech, it was about the dignity of political symbols that unite the country. Prohibitions on child pornography aren’t about free speech, they are about about attempts to regulate the market place for illegal goods or speech integral to criminal conduct. Teens wearing armbands to school is not about self expression, it is about the schools need to maintain order. Every free speech case can be turned into something else if one tries hard enough to do so (and judges often try very very hard to do so.) The question is whether that attempt passes the smell test.

    Personally, I found Ginsburg dissent on this point rather alarming and I’ll admit that Footnote 3 rather freaked me out. It is not the type of argument that liberals or free speech advocates usually make and I could see it being quoted against liberals in the future. In fact, whatever else Footnote 3 in her dissent stands for it certainly stands for the proposition that Ginsburg is most indubitably not a pure free speech advocate.

    (Note: there are other parts of her opinion I do agree with, just not relevant here.)

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    • Yes, Ginsburg’s “judicial framing” evidently consists of ignoring any facts that contradict her foregone conclusion that the baker was “discriminating” against the couple because of their sexual orientation. According to her, no artistry, expression or religious symbolism is involved: a cake is a cake and a wedding is a wedding, and that’s that.

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  5. Osama bin Pimpin says:

    I go with Thomas. This all goes to compelled speech, forget religious issues. If I were the cake baker, I would have complied by baking a cake that says: here is your gay wedding cake baked in spite of my objections to your gay sex (preferably with explicit gay porn painted on cake).

    Shocks me to say this considering Clarence’s erosion of 4, 5, 6 rights generally. As far as notorious RBG’s dissent, once you become a cult of personality that’s where we part ways.

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