There were so many thoughtful and diverse comments on the post about the Great Cake Controversy that I could have justified four or five Comments of the Day. I chose two. This is the first, by the indefatigable Michael Ejercito. Here is his Comment of the Day on the post Back To The Bigoted Baker: It’s Complicated…More Than I Thought:

“Art is notoriously difficult to define. To that list, I could argue for the addition of gardeners, landscapers, bathroom floor tilers, interior designers, architects, website designers, marketing consultants, and on and on. Is a sign-maker an artist? A printer?”

This is a feature, not a fault, of the First Amendment. Courts must make findings of fact based on evidence and testimony. Courts did in fact do just that in Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 91995) and Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006).

In its amicus brief, the Department of Justice spent a total of six paragraphs detailing how public accommodations laws do not ordinarily implicate freedom of expression.

“Justice Kennedy became involved in some of this discussion about where to draw the lines — the ready-made/custom cake distinction, the speech/conduct distinction, and the distinction between selling a cake in a shop and supervising the cutting of a cake at a ceremony…”

It is a distinction that must be made.

It is a tenuous argument, at best, that the sale of sign-making supplies constitutes expression. Thus, Colorado’s laws properly apply to such, and it is unlawful to refuse to sell sign-making supplies because the purported customer is a Westboro Baptist or a militant Islamist. And religious discrimination laws must cover unpopular religions, or else it fails to achieve its own purpose.

But the question is, does this law apply to actually making signs? If not, how do you distinguish between making a sign for Westboro Baptists, or designing a cake for a same-sex wedding? Would it make a difference if the sign maker already sells “God Hates Fags” signs to the general population?

Further guiding this issue is our Establishment Clause jurisprudence. While states can not discriminate against religion, neither can states provide direct support for religion. If the state offered sacks of flour, recycled rubber, blank recordable CDs, or sign-making materials to the general population, it can not deny such because the recipient wants to use them for religious purposes. See Trinity Lutheran Church v. Comer, No. 15-557 (Jun. 26, 2017) However, the state, with extremely limited exceptions, can not design a church, nor priestly vestments, nor signs for a religious picket. And it is obvious that the state can not make (let alone design) a cake to celebrate a baptism or a bar mitzvah, (which is different from making cakes for the general population)

A corollary to this is the state can not require private individuals to do what it itself is forbidden to do. as such, it can no more require private individuals to support religious ceremonies any more than it can require private schools to practice racial segregation. See Brown v. Board of Education, 347 U.S. 483 (1954).

And thus, this conclusion is inescapable. Because the state can not make (let alone design) a cake to celebrate a baptism or a bar mitzvah, it can not require private individuals to do so. And because the state may not require private individuals to make (let alone design) a cake to celebrate a baptism or a bar mitzvah, it may not require private individuals to make (let alone design) a cake for a same-sex wedding. In this context, there is no difference between a baptism, a bar mitzvah, a same-sex wedding, or a picket.

“Kennedy seemed troubled not only about compelling the cake-maker to make cakes for same-sex weddings but also about requiring him to teach his employees that his religion is subordinate to the dictates of worldly government….”

It seems Kennedy wants to rule on as narrow grounds as possible. He seems to want to avoid either a discrimination free-for-all, or requiring sign makers to make “God Hates Fags” signs for the Westboro Baptist Church.

Indeed, Masterpiece Cakeshop had , in fact, alleged that the law is not neutral as applied. Laws against discrimination must be evenly applied, or else they fail their purpose. To be clear, anti-discrimination policies can not be a pretext for suppressing unpopular viewpoints. See Ward v. Polite, 667 F.3d 727, 735 (6th Cir. 2012) And the defendant has argued that this is what is happening. He argued that “[t]he Colorado Court of Appeals has established,and the Commission has acknowledged, that cake
artists may decline requests for cakes with “designs or messages” that they consider objectionable” and “the court below said that the other cake artists could refuse an order because of “the offensive nature of the requested message.” Pet.App.20a n.8. But it is undisputed that Phillips declined Craig and Mullins’s request because he too did not want to express ideas that offend his religious convictions about marriage. ” And yet, he also points out that “The Commission has argued that if Smith creates websites for weddings, CADA requires her to write words and design images that celebrate same-sex marriages”

This would be an independent basis for reversal, even if a state could require sign makers to make “God Hates Fags” signs for the Westboro Baptist Church.