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In this 2014 photo, Masterpiece Cakeshop owner Jack Phillips decorates a cake inside his store in Lakewood, Colorado. Last year, Colorado’s Supreme Court has refused to take up the case of Phillips, who would not make a wedding cake for a same-sex couple, letting stand a lower court's ruling that Phillips cannot cite his Christian beliefs in refusing service. The dispute is now before the U.S. Supreme Court. (AP file photo)
In this 2014 photo, Masterpiece Cakeshop owner Jack Phillips decorates a cake inside his store in Lakewood, Colorado. Last year, Colorado’s Supreme Court has refused to take up the case of Phillips, who would not make a wedding cake for a same-sex couple, letting stand a lower court's ruling that Phillips cannot cite his Christian beliefs in refusing service. The dispute is now before the U.S. Supreme Court. (AP file photo)

Bakers can be artists but can’t discriminate

By Noah Feldman

Cake baking is an art. Or, so says a group of professional wedding cake bakers who have filed a friend of the court brief with the U.S. Supreme Court in what promises to be the blockbuster case of the upcoming term, Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission.

The brief is obviously intended to support the claim of a baker to be exempt from anti-discrimination laws that say he must serve gay customers. It’s all together reasonable to think that a professional baker is an artist. The thing is, that shouldn’t matter. Artists are just like anyone else who has a business open to the public: They have to comply with anti-discrimination laws.

The deep issue in the wedding cake case is the conflict between equality and liberty. From the customer’s standpoint, this is a case about the legal right to be treated equally with anyone else regardless of sexual orientation. From the baker’s perspective, it’s about the right not to implicitly endorse gay marriage by selling a key product for the wedding.

The Colorado state government, which has a law on its books prohibiting anti-gay discrimination, would like to see its laws enforced. To get there, it has to convince the justices that this is a perfectly ordinary instance of discrimination by a business that is open to the public.

A restaurant that refused to serve gay people — or black people, for that matter — would clearly be violating the anti-discrimination law. Once your business opens its doors to the public, you have to follow anti-discrimination laws, no matter how deeply you may believe that they are wrong.

In the hopes of avoiding this straightforward, ordinary application of anti-discrimination law, the wedding cake baker must try to transform the act of baking into something like a symbolic, expressive act of association. In the landmark case of Boy Scouts of America v. Dale, decided in 2000, the Supreme Court held that the Boy Scouts could exclude a gay scoutmaster because the organization had chosen to define itself as an entity committed to excluding gays.

The key in the Dale case was that the Scouts transformed their purpose as an organization into one that intentionally and necessarily excluded gay people. That was what made them different from an ordinary business that happens to discriminate unlawfully. The business’s purpose isn’t to form an expressive association between the owner and the customers; it’s to conduct a transactions between them.

Enter the artists, or at least the cake bakers who define themselves that way. Their plan is that the court should see them as making an artistic statement when they customize a cake for the happy couple. That act of customization is supposed to be crucial. It is supposed to transform the sale of the product into an act of symbolic speech protected by the First Amendment.

I have no problem with the idea that some wedding cake bakers are true artists. We’ve all seen examples. And in the vast contemporary wedding industrial complex, it has become increasingly common for cake bakers to consult closely with their clients, as though they were priests or couples’ counselors, not caterers.

But it would be a fundamental mistake for the court to hold that the baker’s artistry exempts them from anti-discrimination law. Bakers are still opening themselves to the public to offer a generally available service. The sale of the cake may be personalized and artistic, but it is at its essence a commercial transaction.

To see what I mean, imagine a theater or art gallery that posted a sign saying “whites only.” No one could doubt that the product being sold inside, whether a movie, play or a painting, is protected by the First Amendment. But who gets into the theater or the gallery is a separate matter, properly governed by anti-discrimination law.

The same analysis explains the wedding cake baker. The creation of the cake may be a work of art. The question of who gets to purchase a cake is a separate matter of discriminatory access, like getting into the theater.

The best counterargument for the cake baker might be that consulting with the client turns the baking into an art of cooperation. But that distinction doesn’t hold up. The audience in a theater may be part of the show, as in an improv comedy club. The audience at an art gallery may be participants in a piece of performance art. But the act of collaboration is still properly subject to government regulations by anti-discrimination law if the admission is fundamentally commercial.

The basic idea here is that no one is taking artistic control away from the baker. All the government is saying is that the baker can’t reject the client on the basis of sexual orientation. If the client and the baker can’t agree on color or design, the baker is free to refuse to make the cake. The only prohibited basis is sexual orientation discrimination.

So the court should resist the temptation to decide in favor of the cake baker on the basis of artistry. Otherwise, anti-discrimination law will be powerfully undermined, not just for gay people but for anyone potentially subject to invidious bias. The message to artists should be clear: Make whatever art you want, but don’t use discrimination to turn away customers or clients.

 

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. This column does not necessarily reflect the opinion of Minnesota Lawyer, the Bloomberg View editorial board or Bloomberg LP and its owners.

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