In my last diary I attempted, before reading the briefs, to figure out a way that the petitioner in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, a/k/a Cake Jesus, could win for himself and others like him an exemption from anti-discrimination laws like the one in Colorado that prohibits “public accommodations” like his custom wedding-cake business from discriminating against their customers on the basis of, inter alia, sexual orientation. (You can read the order appealed from, wherein the Colorado Court of Appeals rejected and denied such an exemption, here.)
Having now reviewed the petitioner’s brief and many of the amicus briefs in support thereof, it appears that Cake Jesus and his amici have all but abandoned the “religious”/free-exercise argument and are relying almost entirely on “compelled speech” or “forced expression,” viz., if Cake Jesus has to comply with the law, and treat gay couples the same as straight couples, that means the state is “forcing” him to “express” approval, support, joy, happiness, celebration, indifference, or really any other thought besides strident opposition, revulsion and hatred, of the customers’ marriage, and/or of same-sex marriage generally, by producing a cake for a gay wedding. In other words, the state can’t make him “express” those non-hateful thoughts and feelings by “forcing” him to treat his customers fairly and equally.
Some of the arguments I proposed in the prior diary made it into some of these briefs, including the idea that constitutional rights trump legal or statutory rights. And the lengthy, florid, self-laudatory dissertations about what a special talent and wonderfully-unique skill and highly-artistic endeavour it is to design and produce occasion-specific confectionery, and how critically-important and intricately-interwoven the aesthetic design of such pastry (viz., this special talent and wonderful artistic skill) is to the occasion, its celebration, and all of the thoughts, ideas and feelings anyone might have therein or associate therewith, is more bloated and sugary than anything Cake Jesus could hope to actually produce in his bakery.
To me, all that is a distraction; today I want to focus on one thing: Shower Jesus.
In the prior diary, I offered as an analogy a plumber and custom bathroom designer who refuses to design and install a ceramic-tiled shower for an African-American family, because he has a deeply- and sincerely-held religious objection to n***er-bathing. He does not wish to express approval, support or encouragement of n***er-bathing by being “forced” to provide a black family with the means to bathe and an attractive environment in which to do it (thereby enabling more of it), lest that family and any invited guests see his design and impute such approval, support or encouragement to him.
Shower Jesus would certainly argue, as Cake Jesus has, that this is not discrimination on the basis of the customer’s protected characteristic (race, or sexual orientation), but on the basis of conduct (bathing, or marriage) to which the vendor has a sincerely- and deeply-held religious objection, and a concomitant refusal to endorse, enable, promote, encourage or “express” approval, support, or even indifference, toward that activity by lending to a discrete instance of it, as part of a business transaction, his unique and special skill, talent, and one-of-a-kind artistry.
Shower Jesus might also argue that while a wedding-cake design lasts only until the cake is cut and eaten, a tiled-shower design lasts a lot longer, and has the potential to be seen by a lot more people — including whoever eventually buys the house from that African-American family and deduces that it did a whole lot of n***er-bathing — and might have even had n***er-sex, to which the vendor also has a deeply-held religious objection — within that vendor’s custom-designed tilework.
Assuming arguendo that a custom kitchen-and-bath vendor would fall under the Colorado statute’s definition of “public accommodation,” and assuming we agree that Shower Jesus should not be exempt for the foregoing reasons, what principled legal distinction would exempt Cake Jesus from that law but not Shower Jesus? More to the point, would the analysis proffered by the petitioner and amici in their respective briefs, if adopted by the Court, include or exclude Shower Jesus?
For the purposes of this diary, I’m only going to review the petitioner’s brief; there are just too many amicus briefs to go through. As I review it I’m going to assume that Shower Jesus is included and specifically look for arguments that would exclude him from the exemption that Cake Jesus is seeking.
It begins, as all SCOTUS briefs do, with the Question Presented:
Whether applying Colorado’s public accommodation law to compel artists to create expression that violates their sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.
(emphasis added). Hmm. Interesting. Immediately Cake Jesus attempts to narrow the playing field to “religious beliefs about marriage” instead of “religious beliefs” generally. We’ll see if the brief makes a principled distinction between “religious beliefs about marriage” and religious beliefs about other things (e.g., bathing) that would entitle the former and not the latter to exempt the believer from civil anti-discrimination laws. Then again, Shower Jesus could always have a deeply-held religious objection to n***er-marriage, as well as n***er-bathing and n***er-sex, and decline to lend his very special talent and unique artistry to make decorative utilitarian improvements to (and thereby increase the value of) the marital home of a black couple on that basis.
I promise I won’t do this for the entire brief, but let’s look at the beginning of the Introduction and just substitute Shower Jesus for Cake Jesus:
[Shower Jesus]’s love for art and design began at an early age. Discovering that he could blend his skills as a [plumber], [tilemaker], and painter, he spent nearly two decades in [custom kitchen-and-bath shops] owned by others before opening Masterpiece [Kitchen & Bath] twenty-four years ago. Long before television shows like [Kitchen Accomplished] and [Bath Crashers], [Shower Jesus] carefully chose Masterpiece’s name: it would not be just a [kitchen-and-bath installer], but an art gallery of [ceramic tilework]. With this in mind, [Shower Jesus] created a Masterpiece logo depicting an artist’s paint palate with a paintbrush and whisk. And for over a decade, a large picture has hung in the shop depicting [Shower Jesus] painting at an easel. Since long before this case arose, [Shower Jesus] has been an artist using [ceramic tile] as his canvas with Masterpiece as his studio.
[Shower Jesus] is also a man of deep religious faith whose beliefs guide his work. Those beliefs inspire him to love and serve people from all walks of life, but he can only create [kitchens and baths] that are consistent with the tenets of his faith. His decisions on whether to design a specific custom [kitchen or bath] have never focused on who the customer is, but on what the custom [kitchen or bath] will express or celebrate.
At issue here is whether [Shower Jesus] may decline requests for [baths or showers] that celebrate [bathing] in conflict with his religious beliefs. The First Amendment guarantees him that freedom because his [bath and shower tiles and installations], each one custom-made, are his artistic expression. Much like an artist sketching on canvas or a sculptor using clay, [Shower Jesus] meticulously crafts each [tile, and each shower installation,] through hours of sketching, sculpting, and hand-painting. The [tiled shower], which serves as the iconic centerpiece of the [bathroom], announces through [Shower Jesus]’s voice that [bathing] has occurred [and will continue to occur,] and should be celebrated. The government can no more force [Shower Jesus] to speak those messages with his lips than to express them through his art.
…
The [Colorado Civil Rights] Commission must respect [Shower Jesus]’s freedom to part ways with the current majority view on [bathing] and to create his [tiled shower installations] consistently with his “decent and honorable” religious beliefs. Instead, the Commission punished him, demeaned his beliefs, and marginalized his place in the community.
(citation omitted).
I really don’t need to go any further, do I?
Of course, I will, but I don’t need to. :) I’ll skip down to the “Summary of Argument” section beginning on the bottom of page 14 and deal with this, instead of going through the entire Argument section:
[Shower Jesus] serves all people, but cannot convey all ideas or celebrate all events. He seeks to live his life, pursue his profession, and craft his art consistently with his religious identity. The First Amendment guarantees him that freedom.
The Free Speech Clause protects more than words. [Shower Jesus]’s custom [tiled shower installations]—which he intricately and artistically forms with his own hands for the purpose of celebrating his clients’ [bathing]—are his protected expression. Each of them serves as “a short cut from mind to mind,” declaring to all onlookers that the [residents bathe] and that this is an occasion for jubilation. His custom [tilework and installations] necessarily express ideas about [bathing] and the [residents], and as a result, they are entitled to full constitutional protection.
OK, let me pause here for a second. I will grant to the reader that the idea of custom tilework “expressing ideas about bathing” or being a “celebration” of bathing, and that the tilework and shower design declares to all who enter the bathroom that the bathing that occurs therein “is an occasion for jubilation,” is a little ridiculous. But it’s only slightly more ridiculous than the original text vis-à-vis cakes and weddings. Never mind the fact that I’ve never been to a wedding, or in anyone’s bathroom, and even asked let alone knew who made the cake or did the tilework, let alone imputed any “message” about the wedding or the family’s bathing habits to the [unknown] designer. These are all subjective thoughts and impressions that the writer of the brief is imputing to everyone, and it’s way over-the-top. And, for all we know, Shower Jesus may very well consider bathing to be a sacred religious ritual of great significance and profundity.
With that in mind:
This Court’s compelled-speech doctrine forbids the Commission from demanding that artists design custom expression that conveys ideas they deem objectionable. Thus, a [tile] artist who serves all people, like [Shower Jesus] does, cannot be forced to create [tiled shower installations] that celebrate [bathing] at odds with his faith.
…
Moreover, the Commission has not only ordered [Shower Jesus] to participate in celebrating [and enabling] what he regards as a religious event, it has forced him to do so through his expression.
There you go. Shower Jesus regards bathing as a religious event, and he’s been forced to not only celebrate, but enable, n***er-bathing by providing the customer with a place to bathe, and an inviting one at that.
But what about the African-American family that needs its bathroom redone?
While the Commission has an interest in ensuring that businesses are open to all people, it has no legitimate—let alone compelling—interest in forcing artists to express ideas that they consider objectionable. Much less does the Commission have a compelling interest in mandating that people of faith celebrate what they consider to be sacred events.
I see. We won’t even consider their interests, or their rights.
Moreover, the Commission’s actions are not narrowly tailored because Respondents have not even shown that protecting [Shower Jesus]’s First Amendment rights would undercut the interests they seek to achieve.
Not clear exactly what this means, or whether it refers to the Commission or the individual respondents; let’s quickly look at the Argument section to see what they’re getting at here:
The Commission’s attempts to end dignitary harms [to persons discriminated-against in the commercial marketplace] by punishing business owners who serve all people but decline to express all messages is vastly underinclusive and thus not narrowly tailored.
…
Respondents also have expressed an interest in minimizing the instances in which an expressive professional like [Shower Jesus] declines a[n African-American] couple’s [bath]-related request. But the market already provides existing means to address this, such as private websites apprising consumers of professionals in a geographical area who will celebrate [and enable] [n***er-bathing]. If the Commission thinks that more must be done, it could make similar resources available to the public. That would provide a ready alternative that protects the interests of all involved.
(emphasis added).
OK. This is the beginning and end of the section; in between is absolutely no acknowledgment of the rights and interests of consumers generally, or the individual respondents in particular, to have fair and equal access to the commercial marketplace free from discrimination. (More on that presently.) In fact it’s really just a litany of complaints and grievances and resentments about forms of conduct and expression that the statute in question does not or would not proscribe, and some of it is simply incorrect. (More on that presently as well.) The fact is, as I’ve stated repeatedly over the years, that a vendor can refuse service to a customer for any number of perfectly valid, legitimate, lawful reasons; “My special magic book of ancient myths and superstitions says You People Are Icky,” is not one of them. That is neither unfair nor unreasonable.
In addition, the last paragraph quoted above is a variation on the “just-go-somewhere-else” exemption discussed in the previous diary, which I have said many times is not a realistic solution. Moreover, the idea that the government “could make similar resources available to the public,” i.e., take up the cause and responsibility of finding or facilitating the identification of alternative vendors for consumers who are at risk of being discriminated-against, even if true, is not something the Court can order it to do. And, as I’ve also said many times, the only way to guarantee that those alternative vendors won’t discriminate is to make discrimination unlawful by giving consumers the option to sue.
The brief as a whole takes a disturbingly cavalier attitude toward the “dignitary harms” suffered by the victims and potential victims of discrimination in the commercial marketplace, arguing in essence that it is actually artistes like Cake Jesus and Shower Jesus with “decent and honorable” religious beliefs who are harmed by anti-discrimination laws which “force” them to “express” nice things about the Icky People and their icky weddings/bathing. In fact:
[N]ot only is support for same-sex marriage the majority cultural position; it has reached an all-time high[.] [F]ew cake artists (or other expressive professionals, for that matter) will decline to celebrate same-sex marriages because anyone who follows that path must be willing to endure steep market costs and the hostile opposition that people like [Cake Jesus] have experienced. Respondents’ asserted dignitary harms thus do not rise to a compelling level.
…
For the Commission to brand as discriminatory [Cake Jesus]’s core religious beliefs ... and ostracize him as a member of the community inflicts untold dignitary harm not only on him, but also on his fellow believers.
I think I’ll just leave that where it is.
The brief states repeatedly that the Colorado statute “allows any expressive professional to refuse to create speech that they deem objectionable, even if those messages are closely associated with a customer’s protected status.” That is simply not true; if it were, we wouldn’t be here. It’s trying to imply that only religious merchants like Cake Jesus are subject to this law, and that non-religious vendors can discriminate on the basis of race or sexual-orientation in like fashion for non-religious reasons, which is just false. Shower Jesus could not discriminate against a black family and avoid liability even if his objection to n***er-bathing was based on plain old-fashioned garden-variety racism instead of a deeply-held religious belief in the sanctity of the bath, any more than Cake Jesus could discriminate against a gay couple the way he did because he’s merely homophobic. The Colorado Statute makes no mention of the vendor’s reasons or motivation for the discriminatory conduct against consumers with protected characteristics.
The brief also completely divorces “expression” from its business context, referring throughout to Cake Jesus’ behavior only as a “decision not to engage in expression,” not a decision not to engage in a business transaction. This, of course, dovetails with his repeated argument that he didn’t categorically refuse to serve gay people, just to use his very special talents to create an “expression” of support, approval or celebration of a same-sex marriage. Meaning, he only refused to engage in one particular business transaction — which is enough for the consumer to invoke the protections of the statute.
But this diary is about Shower Jesus, and brings us back to the original issue set forth above in the Question Presented, i.e., whether there is something special about a commercial artiste’s religious beliefs about marriage versus his religious beliefs about other things, that would exempt Cake Jesus but not Shower Jesus from enforcement of the anti-discrimination statute. I’m not finding anything in the brief about this apart from some florid language about what a big deal marriage is in contemporary society (and to Cake Jesus personally), which is not to say it’s the only thing that people have deep religious convictions about, or that marriage-related religious convictions are more important than other convictions about other subjects.
Nor, for that matter, does the brief make any principled distinctions by which Cake Jesus would be exempt from the law if, all else being equal, the respondents were black, Jewish or Mexican — or if the event they were planning had an explicitly black, Jewish or Mexican motif or theme, “celebrating” same — instead of gay.
Allright, I’ve taken up enough of your time. Please feel free to cite any other interesting passages from the brief, or the amicus briefs, in the comments, particularly if you find something that would distinguish Cake Jesus from Shower Jesus in a legally-principled manner. The respondents’ brief was due yesterday and should be posted soon; I’ll look forward to reading it when it is.
Thanks for reading.