There is no shortage of strong opinions about the pending Supreme Court case, Masterpiece Cakeshop v. Colorado Civil Rights Commission. But few commentators adequately address its nuances.
A recent op-ed here, for instance, characterized it as a clear-cut freedom of expression case (“Cakeshop case is really about freedom of expression,” Oct. 7). The reality is far less straightforward. Moreover, the ruling that many religious liberty advocates seek may be a Pyrrhic victory.
Masterpiece Cakeshop considers whether Jack Phillips, owner of a custom cakeshop in Colorado, must bake a wedding cake for a same-sex couple despite his religious objections to same-sex marriage.
Asking two short questions illustrates why Mr. Phillips’ claim is more complicated than a simple case of freedom of expression.
First, what qualifies as free expression?
The earlier op-ed here offered two hypothetical scenarios in an attempt to answer this question. In the first, a Mexican-American designer refuses to fashion a suit for President Trump. In the second, the designer refuses to sell Trump fabric. The first case is acceptable freedom of expression, it is argued, because the designer’s choice to deny creative services repudiates Trump’s policies. The second case, however, is said to be unacceptable because it discriminates against Trump as a person.
The problem with this distinction is that it assumes a business can neatly disconnect a customer’s practices from a customer’s identity.
This assumption is not new. Fifty years ago, white Southerners asserted that their refusing to serve interracial couples was not about the identity of race, but about the practice of interracial marriage. Most Americans today would agree that the courts were right to reject that assumption then; we should be deeply skeptical of accepting it now.
This example begs the second question: what are the limits of free expression?
Under current laws, private actors have fairly wide latitude in freedom of expression, while public actors face greater constraints. This makes intuitive sense: the government can’t tell an individual whom to befriend or date, but it can tell a public restaurant to admit women as well as men.
Consequently, lawmakers — and we as a society — must make difficult judgments about where to draw the line between these extremes. The 2015 “Utah Compromise,” for example, was praised for balancing the laudable aspects of each.
So, the question becomes whether a wedding cake business falls more towards the public or the private end of the spectrum. I’ll leave that debate to others; instead, I here want to emphasize that a decision either way entails costs and benefits.
In a sense, the Supreme Court in Masterpiece Cakeshop must choose to prioritize either the right to discriminate — even for non-malicious reasons, such as religious objections — or the right not to be discriminated against.
As a result, religious observers should remember that even a ruling in favor of Mr. Phillips could cut both ways. Under that more expansive idea of freedom of expression, businesses (with services on the private side of the spectrum) could similarly refuse to serve religious customers.
Furthermore, a ruling for Mr. Phillips shifts power from the legislatures to the courts. As long as the courts rule generously in favor of religious liberty, this may be an attractive outcome. But that may change. And if we force the courts to always make the tough calls, we foreclose opportunities to craft solutions — like the Utah Compromise — in democratic fora.
In short, Masterpiece Cakeshop demands more serious consideration, both on its merits and in regard to its long-term consequences. Brandishing freedom of expression, without reference to the case’s underlying questions, does no favors to advocates of either gay rights or religious freedom.
Soren Schmidt is a student at Yale Law School.