Tuesday, December 12, 2017

A Comment on Some Misplaced and Dangerous Slippery-Slope Concerns About Masterpiece Cakeshop

One concern one hears from various quarters (this episode of First Mondays, this column by Michael Dorf, Justice Kagan's questioning at oral argument, any number of amicus briefs) about Masterpiece Cakeshop's position in Masterpiece Cakeshop is that if wedding-cake designers who object to same-sex marriage have First Amendment rights not to service same-sex weddings, then so do makeup artists, hair stylists, florists, tailors, and just about any other wedding-related service provider with the same views.  All of them, the argument goes, might equally be said to be engaged in expression of a sort.  

Because that degree of accommodationism seems intolerable, a flight is then proposed to the safety of Eugene Volokh's amicus brief (or something like it), which neatly limits First Amendment protections of symbolic expression to (1) things that convey more articulate, particularized messages than cakes or coiffures, or to (2) instances of media that just are "generally expressive," either because they've been deemed expressive historically or because, again, they just are "inherently" expressive—even when, like music or abstract art, these media aren't necessarily any more articulate than cake.  If you're an artist who chooses to eschew a traditional redoubt of abstract expression like painting in favor of garden design or, I kid you not, architecture (see footnote 4), you're out of luck on this approach; of course a town can't ban your modernist painting (as the Nazis did), but you can be damn sure it can ban you from building a modernist house.

I find this approach to the First Amendment so wrongheaded and dangerous that I would gladly accept the boundless accommodations it's supposed to avoid rather than take it up, and I will say a little about why below.  But I am principally here to tell you that we do not need to take it up, or any other ground on which to reject Cakeshop's claims, in order to protect same-sex weddings from boundless accommodation to discrimination.

Where people go astray in worrying that accommodating wedding cake-bakers will take us down a slippery slope of accommodations for makeup artists, hair stylists, and other professionals who beautify weddings and the people in them, is supposing that Cakeshop's compelled-speech claim is merely one of expressive complicity.  By expressive complicity, I mean being complicit in something, here the celebration of a same-sex wedding, by engaging in expressive conduct in service of that wedding.  Complicity may be, at bottom, what Cakeshop's owner is worried about, and it is certainly what grounds his free-exercise claim (which may well be, if not for Smith, the better conceptual framework for his concerns).  But it isn't what Cakeshop's speech claim is about.

Rather, Cakeshop argues monotonously throughout its briefs that baking a wedding cake for a wedding says three things about the wedding and the underlying marriage it celebrates: that a wedding has occurred, that a marriage has begun, and that the marriage should be celebrated.  Therefore, being compelled to bake a wedding cake for a same-sex wedding compels Cakeshop to say, or help its customers say, that the same-sex wedding is a wedding, celebrating the beginning of a marriage, and that that marriage should be celebrated.  Whether or not that's right, you can certainly see where it gets those ideas.  

First, people generally don't buy, and cake-bakers generally don't bake, wedding cakes (which do not look like other cakes) unless there's a wedding, no more than women generally walk around in uniquely bridal gowns and white lace veils outside of weddings.  Wedding cakes, the argument goes, are one of many symbolic ways of saying that an event is a wedding, as opposed to some other fancy occasion with generically elaborate dress and dessert.  As "Justice Q" said in the dialogue preceding this post, a pre-Obergefell law that forbade same-sex couples from having wedding cakes at their weddings would be properly understood as a form of viewpoint discrimination against the view that same-sex weddings are proper weddings, rather than some second-class form of union.

Next, weddings celebrate marriages; people don't often have weddings without an underlying marriage to celebrate.  So a wedding cake communicates the idea that the couple is celebrating a marriage.  Finally, the argument goes, a wedding cake isn't just an ornate symbol that tips attendees off that they're at a wedding; rather, through its colors, figurative elements, and elaborate, often highly traditional, shape, a wedding cake says—of course in an abstract way—something festive and celebratory about the wedding at which it's displayed.

Cakeshop, critically, claims to disagree with all these three ideas when applied to same-sex marriages.  Not only doesn't it think that same-sex marriages are worthy of celebration, it doesn't think that same-sex marriages or weddings are marriages or weddings at all.  Marriages just are, for Cakeshop's principals, the union of a man and a woman.  Symbolically calling same-sex marriages marriages by baking wedding cakes for them, as far as Cakeshop is concerned, would be something like baking a "Happy Bar Mitzvah!" cake for a communion.  

If you want to get more tightly or plausibly analogous, suppose a kosher bakery run by Orthodox Jews is asked to bake a "Happy Bar Mitzvah!" cake for a family of Messianic Jews, i.e., Jews who believe Jesus is the Messiah.  That family wants to eat the cake at a party following a "Bar Mitzvah" ceremony at which their son will read, not from the first five books of the Old Testament as is traditionally done at Bar Mitzvahs, but the Gospel of Matthew.  Few non-Messianic Jews of any denomination or degree of religiosity would regard such a ceremony as a Bar Mitzvah, whatever the understandings and intentions of the celebrants.  Many would take great umbrage at being forced to call it the real thing.  Yet Colorado's public-accommodations law would likely regard a refusal to bake that cake for Messianic Jews as religious discrimination, so long as the bakers had baked the cake for what they would call real Bar Mitzvahs in the past.  Cakeshop's claim is that you don't need "Happy Wedding!" on a wedding cake for a wedding cake to say "happy wedding!," and that it doesn't want to express that message about events it views as non-celebration-worthy non-weddings.

Now there are many objections to getting from Cakeshop's position on what wedding cakes express, and its disagreement with that expression when applied to same-sex weddings, to recognizing a First Amendment right against being compelled to sell cakes to same-sex weddings.  I tend to agree with some of them, and indeed I tend to think Cakeshop should lose.  But one thing that is attractive about Cakeshop's compelled-speech claim is that it plausibly argues it is being compelled to express a particular position about same-sex weddings contrary to its principals' religious dogmathat view being that a same-sex wedding is a real wedding that celebrates a real marriage, and that that marriage is worthy of celebration.  Can the hair stylists, makeup artists, florists and tailors of many people's fears say the same?  I generally don't think they can.

Now, I know only a mite more than nothing about wedding makeup, wedding hair, wedding floral arrangements, or even wedding men's suiting, and I am sure that some makeup styles, hair styles, floral arrangements, or men's suits are thought more fitting for weddings than other generically attractive makeup styles, hair styles, floral arrangements, or men's suits.  Nevertheless, it seems unlikely to me that there is any makeup style, hair style, etc., that is so distinctive to weddings and so unfit for non-matrimonial glamorous occasions that anyone, outside perhaps of a small coterie of bridal-magazine-scouring cognoscenti, could look at that makeup style or hair style or suit or floral arrangement and say, "that makeup/hair/floral arrangement/suit symbolically expresses that this is a wedding."  

Absent a bridal dress, for example, I doubt many people could tell with confidence from looking at a bride's makeup or hair that she was dressing up for a wedding; absent a telltale boutonniere, you usually can't tell from a man's suit that he's a bridegroom; and absent something like a wedding cake, I don't think one can tell from wedding flowers alone that an event is a wedding.  On the other hand, wedding cake at a non-wedding is very nearly a contradiction in terms; at the least, if you see one you know with near certainty what sort of event you're at.

I recognize, of course, that people do not generally go around trying to guess at what sort of party they've been invited to by analyzing the decor; one (usually) knows.  So whether something is a telltale sign of a wedding might seem an irrelevant thought experiment.  But I think it gets at a deeper expressive point.  

That point is this.  Great makeup, hair, a nice suit, or even flowers simply do not symbolically express "wedding" in particular; they symbolically express "nice/big event," and in the case of great makeup or hair, they may only express the wearer's desire to look good.  If you are a makeup artist, you can happily do a bride's makeup for her wedding without feeling you are saying anything (or even assisting her to say anything) about whether her wedding really is a wedding or not, just as a very Orthodox Jewish tailor could prepare a boy's suit for a Messianic "Bar Mitzvah" without feeling that he had symbolically expressed a view that the child was having a real one.  Even if the wedding or Bar Mitzvah are not, in the professional's view, true weddings or Bar Mitzvahs in a religious sense, it's in the nature even of faux-weddings and faux-Bar Mitzvahs—indeed, of all formal eventsthat the participants will want to dress up.  At most, these professionals are being compelled to help their customers say something like, "this is a big day for me."  

Of course, the reason the customers think that "this is a big day" is that they're having, in their view, a wedding or Bar Mitzvah, so one might argue that in context the makeup artist or tailor is being compelled to help the customer say "this is a wedding/Bar Mitzvah and is worthy of celebration."  But that is a fallacy, like claiming that because the reason someone's dressmaker is asked to make his customer a special dress is that customer's excitement about attending the Trump inaugural ball, the dressmaker is being asked to symbolically express the message that "this event is the Trump inaugural ball, and that's something to celebrate."  No dress can articulate that.  A bridal dress, however, by virtue of its distinctively bridal style, can say, "this is a wedding, and it's a lovely occasion."

On the other hand, just as we must grant wedding invitation makers that they are at least being asked to help their customers say "this event is a wedding, and we want you to come," I think we must grant wedding cake-makers that they are at least in the business of helping their customers symbolically express, "this event is a wedding, not some other generically nice event that we're making a to-do over, and it's a joyous occasion."  Whether we attribute that speech to the buyer or cake-baker; whether we think that laws compelling cake-bakers to bake cakes for all comers irrespective of their membership in protected classes are content-neutral regulations of conduct that only incidentally burden speech, and are therefore presumptively constitutional; whether we think that commercial expression is importantly distinct from parading or being in the Boy Scouts, I think we must at least grant these basic and, if not for Masterpiece Cakeshop, uncontroversial truths about the nature of wedding cake.  If we don't, I'm not sure how we explain what a wedding cake even is.

Because most wedding-service professionals are not in the business of providing goods or services that symbolically express "this is a wedding," but rather are only in the business of helping their customers mark their weddings as generically big occasions, I think they will have a difficult time mounting compelled-speech claims against public-accommodation laws that force them to provide services to same-sex weddings.  That's not to say that they don't have First Amendment rights against regulation of the content they produce; unlike Professor Volokh, I think a hair stylist has roughly the rights of a more traditional artist.  I just don't see a plausible claim that a hair stylist who's compelled to provide services for participants in a same-sex wedding is being compelled to express, or assist in expressing,  any particular message of which she disapproves.

On the other hand, wedding cake-bakers and wedding dress-makers can at least say that they are in the business of creating goods through which their customers symbolically hold out their weddings as weddings; wedding invitation designers can say the same, less the symbolism.  And wedding photographers are asked to make art that portrays the weddings they capture as weddings, calling attention to those visual aspects of the wedding that distinguish it from other parties or ceremonies. 

I don't know how convincing all that will be to anyone, though it seems sound to me, but I want to add that if it doesn't seem sound to you, the proposed cure of cordoning off non-traditionally expressive media from First Amendment protection is a great deal worse than the disease.  Volokh's brief suggests we only protect conduct that clearly expresses particularized messages, along with media that don't, but historically have been recognized as expressive, like painting or music, no matter how inarticulate or abstract.  As for anything else, so long as it fails to express a particularized, legible message (like a Jackson Pollock painting), and (unlike a Jackson Pollock painting) isn't made in a medium that has "long conveyed messages," it doesn't get First Amendment protection.

As I said above, I find this approach disastrously wrongheaded.  (It perhaps goes without saying that the Court has never adopted it.  The Court has certainly extended First Amendment protections to the things Volokh would protect, but has never said that everything else is ineligible, and the Court's last word on the subject reads to me more like a disavowal of any requirement of a particularized message than a reaffirmation of that requirement outside a limited set of traditionally expressive media.)  In the first place, it strikes me that Volokh has no real rationale for protecting abstract art or much of music; abstract painting is only begrudgingly grandfathered in as part of an historically expressive medium rather than protected for its own expressive sake.  Otherwise, he'd be interested in protecting other sorts of abstract art without regard to whether they were painted in oils.  

Volokh's brief confirms these suspicions; in it he's fairly candid about his indifference to abstract art's expressive value.  He says that because painting has "long conveyed messages" about things like religion, politics, or the character or beauty of its representatively depicted subjects, we're stuck protecting the other paintings that may not do so, for courts are "ill-equipped" to make the aesthetic judgments needed to decide whether individual paintings "convey enough of a message."  Paradoxically, however, he thinks courts are well-equipped to make the aesthetic judgments needed to decide whether individual cakes or found-object sculpture convey enough of a message; indeed, that is his test for First Amendment protection of art that lies outside traditionally expressive media.  What he might as well say is that he'd like to jettison First Amendment protections of abstract painting for lack of a clear message, but knows that position is hopeless before real-world judges.

That said, the argument is just as objectionable when taken at face value.  The suggestion that were only judges better art critics, we could deny First Amendment protection to the Abstract Expressionists for lack of a particularized message about religion, politics, or the character or beauty of the subjects that were missing from their work, is disturbing, and typical of the narrow, marketplace-of-ideas-centric cast of his First Amendment thought that led him to argue in Alvarez that people had no First Amendment right to tell ennobling fairy tales about their military service because lies have nothing to contribute to a productive "exposition of ideas."

Having narrowly grandfathered in a few traditional media—painting, music, poetry, and parading—that sometimes fail to make sufficiently direct contributions to the marketplace of ideas, Volokh proceeds to fence out all the rest.  To his credit, he is quite candid about leaning in to the most unattractive implications of this view.  Even though one might have assumed that architecture traditionally conveyed enough messages about power, wealth, religion, culture, landscape, and so on for less explicitly expressive architecture to be grandfathered in with modern painting, Volokh assures us that towns may ban modern residential architecture in favor of "neo-Tudor" stylings, the theory apparently being that architecture is only expressive in a merely aesthetic sense.  As far as I can tell, he would see no First Amendment objection to a nationwide ban of modern architecture.  

Next, granting that "a woman's pantsuit [] may be seen in some time and place as implicitly connected with some symbolism, such as . . . a view of women's equality with men," he nevertheless insists that the state may ban that symbolism, as far as the First Amendment is concerned, because clothing lacks "the communicative elements necessary" to be worthy of First Amendment protection.  Such protection as women may hope to find from pantsuit bans, or compelled dress codes of traditionally feminine clothing, must be found in the Equal Protection Clause.  As for transgender persons, who have not yet been extended heightened scrutiny, at least in the Supreme Court, there would be no clear constitutional recourse.  And if a state banned gender-differentiated clothing, or immodest clothing, it's not clear that the scads of people who would be forbidden from expressing the traditional gender norms or sexual identity they'd like to express, in one of the most traditional ways such norms and identities are expressed, would have any claim at all. 

Finally, and perhaps most alarmingly, he suggests that a hairstylist who objects to a white customer's asking for cornrows on the ground of distaste for cultural appropriation, or even perceived racist mockery, is not being asked to engage in any protected expression and lacks even the beginnings of a compelled-speech objection to a public-accommodations law that requires him to assist his customer in giving him racist offense.  (The articles cited in Volokh's brief defending or criticizing such ostensibly contentless gestures are protected speech, of course, but the far more powerfully expressive conduct they debate is not.) Hairstyles, he explains, though "aesthetically appealing," and though they may "convey links to particular attitudes," are not communicative enough to merit any First Amendment protection.**  As far as I can tell, he not only thinks the state may compel a barber to help a white customer express whatever he means to express by wearing cornrows, but also thinks the state may ban cornrows or Afros altogether on the ground that they're unattractive, just as it may ban the modern house.

** His point that we couldn't regulate entry into the hair styling profession if hair styling were protected speech doesn't follow; else we would have to conclude that legal advocacy is entirely unprotected speech as well, rather than what it almost axiomatically is, speech that is merely permissibly regulable to an unusual degree (see, e.g., Rule 11), but not plenarily so. 

It is difficult, of course, to explain the value of what we would lose in this First Amendment world, because what would be lost is inarticulate.  But that does not mean nothing would be lost. The importance of protecting cornrows, pantsuits, or modern architecture from what could only be described as viewpoint discrimination is not mitigated by the difficulty of stating with particularity what views cornrows, pantsuits, or modern architecture express.  Nor is the difficulty of describing those views evidence that they don't exist.  Anyone who's ever had an opinion about Allen Iverson or Hillary Clinton, positive or negative, knows that cornrows and pantsuits convey a wealth of meaning.  

The impossibility of reducing that meaning to a syllogism only shows that it is expressive on a more fundamental and vital level than most of the ideas Volokh and our increasingly inflexible First Amendment doctrine are so eager to protect—that it is deeper, more rich in connotation and sheer symbolic force, than any form of words for which it might be substituted.  The First Amendment world Volokh describes is one in which we are free to engage in inane political discussions on cable news, to say ghastly things to each other about our loved ones at their funerals, to racially demean our fellow students at public universities, but not to express, in the ways ordinary people do, who we are, who we think we are, who we aspire to be, or in the case of architecture, how we understand ourselves in relation to the earth.  

No amount of inconvenience or even stigma in the procurement of wedding services can be worth these costs.  But fortunately, outside of wedding cakes, invitations, photographs, and bridal gowns, it isn't really a price we have to pay.

Thursday, December 7, 2017

A Dialogue on Whether Wedding Cake and Wedding Cake-Baking Are Speech

A surprising amount of argument in Masterpiece Cakeshop revolved around whether wedding cakes are speech.  This was surprising because both Colorado and the private respondents in the case (the same-sex couple that tried to purchase a cake from Masterpiece Cakeshop don't particularly contest that wedding cake is speech, but rather argue that even if it is, Colorado's public-accommodation law is a law that targets conduct, not speech, and that its incidental effects on expressive conduct should be reviewed under O'Brien or some even more deferential standard of review for laws that regulate commercial conduct.

Of course, Masterpiece Cakeshop and the Solicitor General disagree, the latter arguing that public-accommodations laws are subject to heightened scrutiny in applications where they compel someone to "create expression" and to participate, through that expression, in an "expressive event."  I'm not exactly sure what that means or where it's coming from, but one might have thought that argument might focus on where the parties primarily disagree, which is what First Amendment standard of review applies in this case assuming that baking a wedding cake is speech of some sort.

However, that wasn't what oral argument was mostly about (as Howard Wasserman and Rick Hills lament here and here); a great deal of the argument concerned a proposition that the respondents, especially the private respondents, were willing to assume, i.e. that Colorado's public-accommodation law incidentally captures some speech in its generally conduct-regulatory net, including Masterpiece Cakeshop's cake-baking.  One might take that as a good sign for respondents.  Alternatively, and perhaps more probably, one could conclude that the pro-respondent Justices either were unimpressed by respondents' own arguments and thought a better tack was attacking the premise that cake is speech at all, or that they hoped to convince their colleagues that just about anyone could claim a First Amendment exception to a public-accommodation law if a cake-baker could.

I find the standard-of-review question a difficult one on which I have nothing of value to say; hence, I had avoided writing about the case because I thought that was what the case was about.  But I do have somewhat developed, though unresolved, thoughts on whether wedding cake and wedding cake-baking are speech, and what they express if they are.  In addition, I found the questions and answers at oral argument on this point fairly unilluminating.  And unlike Professor Hills, I don't see the expressive/non-expressive status of wedding cake as a cosmic irrelevancy or an incoherent subject of inquiry.

I thought, then, that I might produce a dialogue in the form of an oral argument on the subject, in order to help clarify why we might think, or not think, that wedding cake is speech, that baking a wedding cake for someone else's wedding is speech, and precisely what, if any, speech is compelled when a cake-baker is compelled to bake a cake for a same-sex wedding.  Various points made here draw on the briefs, amicus briefs, and questions and answers at oral argument.  The questions are all questions I would ask someone making these arguments, and the answers are roughly answers I would give if I were in the position of the lawyers being asked them.


Colorado:  A wedding cake isn't speech.  Like any other food, the primary purpose of a wedding cake is to be eaten.  Petitioner's wedding cakes may be beautifully crafted, but that doesn't make them speech, any more than a dinner at a fine restaurant is speech because of how elegantly it's presented on the plate.  Were you to deem wedding cake speech, you would blow a hole through public-accommodation law; any restaurant could decline to serve dinner to a same-sex couple on their wedding anniversary on the ground that it doesn't want to honor a same-sex marriage with its "speech."

Justice Q: Counsel, I wonder if we might not distinguish wedding cakes from other foods.  Aren't wedding cakes unusually symbolic?  Why do we even call wedding cakes "wedding cakes," and why do weddings always have wedding cake instead of some other, perhaps better-tasting, dessert?  Isn't the reason that wedding cakes symbolize weddings?  Inasmuch as wedding cake is a subgenre of cake, aren't the differences between ordinary cakes and wedding cakes all expressive?  That is, wedding cakes are designed in various ways to symbolize the wedding for which they're baked; ordinary cakes are not.

Colorado:  Justice Q, of course I would grant that wedding cakes are traditionally associated with weddings, and perhaps have become symbols of weddings because of that association.  But I don't think that a wedding cake expresses anything in particular, besides, at most, the fact that the event at which it is being consumed is a wedding.  And the fact that a food is traditionally associated with a particular event, and therefore might be understood to convey the fact that the event at which it's being served is that particular event, can't be enough to make the food speech.  

For example, a large turkey is traditionally associated with Thanksgiving, and it very well may symbolize Thanksgiving and even convey the message, when served for dinner, that tonight is Thanksgiving.  But Thanksgiving turkey isn't speech and there would be no First Amendment problem with a state banning the slaughter of turkey.

Justice Q:  There's a lot in what you say to unpack, but first, are you sure Thanksgiving turkey isn't speech?  Suppose a city banned the consumption of turkey on Thanksgiving because it perpetuated false narratives about the interaction between Pilgrims and Native Americans.  Do you suppose that would be constitutional?  Or do you think it would be constitutional to compel the consumption of turkey on Thanksgiving in order to promote a certain narrative about the history of Thanksgiving?

Colorado:  I don't, but that would be viewpoint discrimination, which we don't have here--

Justice Q:  But you said Thanksgiving turkey isn't speech at all, so how can regulating something that isn't speech be viewpoint discrimination?

Colorado:  Perhaps Thanksgiving turkey was a poorly chosen example because of its historic connotations.  But I still maintain that the mere fact that a food is symbolically associated with an event isn't enough to make it speech.  So if you don't like turkey, consider cranberry sauce.  Cranberry sauce --

Justice Q:  Well if we could stay on Thanksgiving turkey for a moment, you concede that Thanksgiving turkey is expressive enough that certain laws about Thanksgiving turkey could unconstitutionally compel or restrict speech.  But you don't think that's true of wedding cake, is that right?

Colorado:  That's right.  Thanksgiving turkey, I would now concede, may have some historic or even ideological symbolism besides merely incidentally conveying that the day on which it's served is Thanksgiving.  But wedding cakes don't express anything; they merely are foods traditionally associated with weddings, like cranberry sauce is traditionally associated with Thanksgiving.  At the very most, they incidentally indicate that the event at which they're served is a wedding, because of their association with weddings.  That's not to say that certain messages on wedding cake aren't speech or that it's impossible to imagine viewpoint discrimination as to those messages.  But no, I don't think that wedding cakes in general could be the subject of viewpoint discrimination.

Justice Q:  So what if a state, before our decision in Obergefell, said that it objected on moral grounds to same-sex marriage, and further said that it objected to same-sex couples having the customary trappings of weddings at their weddings or commitment ceremonies, including wedding cakes and bridal gowns.  No First Amendment violation?

Colorado:  Well I certainly think that would be an odious equal protection violation, even before Obergefell, under this Court's decisions in Romer and Lawrence.  I think the claim would sound in equal protection. 

Justice Q:  Really?  The whole point of the law would be to forbid same-sex couples from symbolically holding themselves out as wedded couples in the same way that other couples do, to ban them from saying that even though the state might see their unions as second-class they did not.  How could that possibly not be a First Amendment violation?

Colorado:  Your Honor, I concede that it would, and I recognize that to concede it I must concede that a wedding cake is speech of a sort.  But I want to qualify that concession in two crucial ways.  The reason that your hypothetical poses a case of viewpoint discrimination is that—as your hypothetical shows—a wedding cake is a statement by the couple that buys it that says "this is a wedding."  The same-sex couples in your hypothetical are being forbidden from expressing that view through the traditional media of wedding cakes and bridal gowns.  But that doesn't help Petitioner for two reasons.

First, I don't understand Petitioner to be complaining that he was compelled to symbolically express that the private respondents' wedding was a wedding, which is just a fact that he can't deny; he claims that he was compelled to celebrate and endorse the wedding.  I concede that wedding cakes say, "this is a wedding," but not that they endorse weddings.

Second, while a wedding cake is, I concede, a statement by the wedded couple that a wedding's happened, it's not a statement to the same effect by the baker.  And the easiest way to see that is to ask whether a baker that wanted to bake cakes for same-sex couples would have a First Amendment claim in your hypothetical.  I don't see that he would.  The viewpoint being discriminated against in that hypothetical is the couple's, not the baker's.

Justice Q: Could I push back on a factual premise of your answer?  Petitioner does object to being compelled to celebrate same-sex marriages, but he also seems to object to being compelled to say that same-sex marriages are marriages.  At Joint Appendix 162, he says in his affidavit that a wedding cake communicates that a wedding has happened and a marriage has begun; at Joint Appendix 158 he says that God regards marriage as between a man and a woman; at Joint Appendix 167 he says the reason he won't bake a wedding cake for a same-sex wedding "has everything to do with the nature of the wedding ceremony itself and my belief about what marriage is."  

Now, you conceded to me a moment ago that same-sex couples couldn't be forbidden from expressing through a wedding cake that their wedding is in fact a wedding and their marriage is in fact a marriage, even in a state that banned same-sex civil marriage and didn't recognize same-sex marriages licensed in other states.  Why doesn't Petitioner by the same token have a right against being compelled to express the same idea through the same medium? 

Colorado:  Justice Q, because we're not compelling Petitioner to express that idea.  And let me offer an analogy of my own that I hope will make that clear.

Now, I grant you that a wedding cake is a statement by the couple buying the cake that they just had a wedding, just as a birthday cake is a statement by the person buying the cake that the person for whose birthday is bought is having a birthday.  And maybe I'll even assume that the wedding cake and birthday cake express a celebratory message about the wedding or the birthday.  

But your Honor, even though a birthday cake is a statement by the buyer that someone's having a birthday worth celebrating, it isn't a statement by the baker that the recipient is having a birthday worth celebrating, or even that the recipient is having a birthday.  He's just been engaged to make a birthday cake; he doesn't necessarily have an opinion about whether anyone's having a birthday or not, much less whether the recipient's someone whose birthday he wants to celebrate.  Even the messages he's asked to write on the cake aren't his speech.  Suppose a couple came in that appeared to be in their 40s and one bought the other a 30th birthday cake.  The baker might write "Happy 30th Birthday" on the cake, but that doesn't mean that he's expressing the view that the recipient is really celebrating his 30th birthday.

Justice Q:  So as far as you're concerned, a messianic cult could compel Petitioner to make a "Happy Birthday, Son of God" birthday cake for their leader.  He's not stating the view that the cult leader is the son of God; only the buyer is.  Do I have you right?

Colorado:  You don't have to decide that case to decide this case, and we wouldn't do that because our public-accommodation law only requires retailers to make the same products for customers of one religion that they would for another.  Petitioner presumably wouldn't bake that cake for anyone.

Justice Q:  Oh, but if Petitioner were willing to make such a cake for a church that had a funny way of celebrating Christmas, you would compel him to make it for the cult.  No?

Colorado:  We would, and I don't think that raises free-speech concerns because the cake speaks the message of the buyer, not the artisan commissioned to write that message in icing.  Likewise, a typesetter, in the days of movable type, couldn't raise free-speech objections to a public-accommodation law that effectively required him to set in type messages with which he disagreed.  But we're getting a little far afield, because the private Respondents didn't ask the Petitioner to write any particular message on their cake.

Justice Q:  I suppose.  Let me ask you, leaving aside any verbal message or figurative representation of his clients, do you think that Petitioner has any First Amendment rights in the cakes he bakes, or do all the First Amendment rights inhere in his clients?

Colorado:  I hesitate to say yes, but I think he might have a claim if we regulated wedding-cake style or color, or forbade traditional cake designs or required them, or banned wedding cake altogether.  Not that we ever would do that, but I want to be responsive.  I would concede that Petitioner's cakes express certain ideas he has about the sanctity and beauty of marriage, yes.  What I don't think is that by selling a cake to a particular couple, Petitioner makes any statement at all about that couple's wedding or marriage.  What's happening here is that Petitioner's customers are taking Petitioner's abstract ideas about the sanctity of marriage or the joyousness of birthdays and applying them to their particular marriages or birthdays.

Justice Q:  That's an intriguing construct, but to what else would you apply it?  What about companies that write wedding vows or wedding speeches?  Could they be compelled to write vows or speeches for same-sex weddings on the theory that they're only being compelled to reiterate boilerplate sentiments about marriage that their clients will apply to their own marriage?

Colorado:  No, I think that's quite different.  Any set of vows or wedding speech that such a company would write would say something in particular about the couple getting married.

Justice Q:  Yes, but why does that make it the speech of the speechwriter on your view?  I thought that you said that even if a cake-baker wrote "Happy Birthday, Son of God" on a cult leader's birthday cake, he wouldn't be saying that the cult leader was the son of God.

Colorado:  And I still maintain that.  The difference is between transcription and speechwriting.  The wedding speech wouldn't be perceived of as the personal message of the speechwriter, any more than the icing on the cake would be perceived of as the opinion of the cake-baker, but there's still a First Amendment problem with compelling someone to write someone else's message.  So if this case were about a ghostwriter who objected to writing autobiographies about the lives of same-sex couples, I think this would be a very different case.  Things like speeches and memoirs are so central to First Amendment protection that even though speechwriters or ghostwriters might not be perceived as the speakers of that speech, you still wouldn't want to compel them to help someone else figure out how to express their message through those media.

Justice Q:  Fascinating.  Maybe we could hear a little from the private Respondents.

Private Respondents (represented by ACLU, hereafter ACLU for short):  Justice Q, we didn't actually take a position on whether wedding cake is speech, but since the question seems to be of such importance to the Court, I'd like to advocate for a position one of our amici, Eugene Volokh, took on this issue.  My friend started off by arguing that cake isn't speech because its purpose is to be eaten.  Others might think wedding cake's primary purpose is decorative.  Professor Volokh would suggest it doesn't matter, because either way wedding cake isn't symbolic expression.

In his brief, Professor Volokh shows that this Court has recognized two kinds of symbolic expression.  First, conduct can be symbolic expression if it falls within a generally expressive medium, like painting or music or parading.  Second, even if conduct falls outside a generally expressive medium, this Court has protected it if it's intended to convey a particularized message that would likely be understood by those who viewed it, like flag-burning.  Neither of those circumstances are present here.

Justice Q:  I read Professor Volokh's brief, and I have to say that I'm very puzzled about how we're supposed to decide what a generally expressive medium is.  In the first place, I don't know where he gets the idea that we've announced this rule about generally expressive media.  He cites Hurley, but the part of Hurley he cites just says it can't be the case that only symbolic expression with a particularized message is protected, and that parades, protest armbands, painting, and music are too.  I don't see where it says that for conduct that lacks a particular message to be symbolic expression, it's got to fall within a generally expressive medium.

ACLU:  Well, Justice Q, I'd first suggest that a generally expressive medium is the through-line that connects all of those examples in Hurley.  But I also think it has to be the case, because absolutely anything could be deemed protected speech if we didn't require either a particularized message or a generally expressive medium.  Orthodox Jewish delicatessens, for example, could claim that their lox spreads are art and that they have a speech right not to sell them to intermarrying couples' weddings, or non-Orthodox bar mitzvahs.

Justice Q:  Really?  If a medium can be deemed expressive even if practitioners of that medium don't convey particularized messages—like music, for example—why can't we just say that something is expressive if it's expressive by whatever criteria you're using to say whether a medium as a whole is expressive?  Why will the same criteria fail to provide any limiting principle in individual applications?  

Also, what makes a medium generally expressive anyway?  The brief you're defending says that clothing and hair-cutting aren't expressive media, and that sex-based dress codes wouldn't raise First Amendment issues, though they might raise equal protection issues.  If a school said that in order to do its part towards ending the patriarchy, it would impose a unisex dress code, would you have no First Amendment problem with that at all?  Would students that wanted to express traditional gender norms through their clothing have no claim?

ACLU:  They might have a claim, and here I guess I differ from Professor Volokh.  Clothing choices are very personal and say a great deal about the person wearing the clothes.  But I would caution the Court that that kind of logic can be taken too far.  What kind of car someone drives may say a lot about them too, but I don't think car choices implicate speech rights.  These are hard lines to draw, but the Court must draw them or the First Amendment would subsume all commercial regulation.  

In any event, I don't think wedding cake is a particularly close case.  Wedding cakes are just another decorative element of the wedding, like the flowers, or the table settings.  They're no more protected expression than carpeting, which we certainly wouldn't recognize as speech even though some carpets are very expensive, have great aesthetic qualities, and even hang in the Louvre.

Justice Q:  I don't know that we're getting anywhere.  But let me ask you why wedding cakes don't at least convey particularized messages.  Your friend agreed that wedding cakes convey the message, "this is a wedding."  Is he right?

ACLU:  I think certain wedding cakes, maybe most, do that, although Petitioner refused to bake my clients any cake for their wedding, not just a cake with a special wedding-signifying design.  But everyone at a wedding knows that they're at a wedding.already, so it's just a redundant statement of an uncontroversial fact, not a particularized message akin to the one sent by flag-burning.  Even if Petitioner ran a newspaper that refused to run for-pay same-sex wedding announcements, I don't think he would have much of a claim.

Justice Q:  But Petitioner doesn't see your clients' wedding as a wedding; he believes that marriage is a union of a man and a woman, and at the time he denied your clients a cake, he was right as a matter of Colorado law.  So why isn't he being required to express a very controversial proposition?

ACLU:  Justice Q, I think the factual statement that my clients had a wedding is very distinct from a statement that the relationship between my clients is a marriage by the lights of Petitioner's religious belief system.  Certainly Petitioner must accept that same-sex marriages happen today, whether or not he thinks that they're recognized by God as marriages.

Justice Q:  So if wedding cakes just express the banal, redundant factual statement that the party you're at is a wedding, why would it be unconstitutional for a state to ban wedding cake at same-sex weddings?  Or don't you think it would?  Or what about a ban of wedding cake at all weddings?

ACLU:  The latter very well could survive if it were enacted for valid nutritional purposes.  As to the former, the rule against viewpoint discrimination extends very far, into areas where there's otherwise little or no First Amendment protection.  Even quite redundant symbolism can be the subject of viewpoint discrimination.  Perhaps a state couldn't selectively ban balloons at same-sex weddings either, but I don't think that even Petitioner would claim he would have a case if he were a balloon merchant, or that an environmental ban of helium balloons would receive any First Amendment scrutiny at all.

Justice Q:  Well I must say that I don't understand how something that isn't even speech can be the target of viewpoint discrimination.  If the state could viewpoint-discriminate by banning balloons at same-sex weddings, that can only show that balloons at weddings are a form of symbolic expression.  If a state that didn't like same-sex weddings banned same-sex couples from having really good steak at their wedding receptions, or tiramisu, would that be viewpoint discrimination?  The reason a discriminatory ban of wedding cake would be is that wedding cake says that this event is a wedding.

ACLU:  Arguably a discriminatory ban of steak or tiramisu at same-sex weddings would be viewpoint discrimination, inasmuch as those foods signal that this event is a special event.  I don't know if they're on any different footing than the wedding cake ban.  Of course all of them would be cases of sexual-orientation discrimination and I do think that that's what those claims really sound in.

Justice Q:  One last thing.  You said a state might be able to ban wedding cake.  Could a state compel every wedding to have a wedding cake, or every bride in a wedding to wear a traditional bridal gown, in order to promote traditional ideas about marriage?

ACLU:  I think the answer to those two hypotheticals might be different.  As to the wedding cake, I can't say I see that as a compelled-speech problem.  It may be so irrational that the law would simply fail rational-basis review.

Justice Q:  Under what kind of theory?

ACLU:  Substantive due process, or perhaps bakers that don't bake cake and would like to sell alternative desserts to couples that prefer something less traditional would have an equal protection claim.  I don't think we have to worry about a state enacting such a law, in any event.

Justice Q:  Well thank you.  We'll hear from the United States.

Solicitor General:  For all the reasons that have been brought out in oral argument today, we think wedding cake is symbolic expression, but I'd like to offer the Court a doctrinal framework to work through these issues.  Along the lines of what Justice Q was saying to my friend, we think that Professor Volokh's test is too narrow, and we don't think this Court has ever adopted it.  Something doesn't have to carry a particularized message or be made within a generally expressive medium to be symbolic expression.  It just has to be expressive itself.  

It can't be right that whether Jackson Pollock was engaged in expression depended on his working in a medium that has traditionally been deemed expressive; otherwise, artists couldn't create new expressive media that received First Amendment protection unless they engaged in particularized speech.  Marcel Duchamp's urinal wouldn't be expression under that test because it carried no particularized message that people would likely understand, and because urinals had never been art before.  So we need a different test.

The test we propose is the one offered by Judge Cabranes in Mastrovincenzo.  First, he and the Second Circuit asked whether an item has expressive elements, or an expressive purpose, at least in part.  If so, the court then asks whether it has a non-expressive function.  If so, the court then asks whether the item is predominantly expressive or predominantly non-expressive.  Here, I think it's pretty clear that Petitioner's clients primarily buy his cakes for their expressive qualities, not to eat them.  Those expressive qualities include the symbolism and celebration of marriage discussed earlier in the argument.

Justice P:  Well General, I guess I'm stuck on the first part of the test.  Take a luxury watch, for example.  Now many watches are predominantly about decoration rather than time-keeping, so you might say they're predominantly non-utilitarian, but are they predominantly expressive?  Is decoration expressive? 

Solicitor General:  I don't think mere decoration is expressive, Justice P, and I therefore don't think that luxury watches will generally be entitled to First Amendment protections, absent some expressive feature particular to a given watch.

Justice P:  I see why you want to say that, but what's your rationale, then, for protecting abstract art, or really all sorts of art that doesn't express any particular message and might be deemed merely decorative?  I take it you don't want to limit protections for non-particularized expression to traditional expressive media and that you would recognize new forms of abstract or conceptual or non-figurative art, so why couldn't watches or any primarily decorative good be such a medium?  I'm sure that art critics would tell us that abstract art isn't merely decorative and conveys some obscure expression, but judges aren't good at this sort of thing.  That's why I think there's a lot to what Professor Volokh says, even if his standard does run the risk of underinclusion.  If we don't stop at traditionally expressive media, we won't know where to stop.

Solicitor General:  Justice P, the question of what is and isn't art even vexes philosophers, but that doesn't mean that this Court can choose not to protect emerging genres of art because the question's hard.  I think a little common sense goes a long way here.  Fine watchmakers certainly see themselves as craftsmen or even artisans, but I don't think they would tell you they're engaged in artistic expression.  Petitioner and other cake-bakers like him do have expressive purposes.  

I think another way of getting at this is to ask whether it's possible to imagine a medium being the subject of illegitimate viewpoint discrimination or content-based regulation.  So my friends, or at least one of my friends, were willing to concede that banning wedding cake at same-sex weddings would be a form of viewpoint discrimination against the view that same-sex marriages are just as much marriages as opposite-sex marriages.  I can't imagine a similar hypothetical about luxury watches.  If a state bizarrely attempted to stigmatize same-sex couples by banning male participants in same-sex weddings from wearing nice watches, that would raise many problems, but viewpoint discrimination wouldn't be one of them.

Justice P:  With respect to my colleague, don't these viewpoint-discrimination hypotheticals either prove too much or too little?  I suppose it could be viewpoint discrimination to ban people from giving especially nice watches as same-sex wedding gifts, or giving nice kitchen appliances, if the point were to suppress the message that same-sex weddings were worthy of nice gifts.  But that doesn't show kitchen appliances are speech.  So I think your friend is right; just about anything can be the subject of viewpoint discrimination if you construct the right hypothetical.

Solicitor General:  Your Honor, I would distinguish between gift-giving, where any intrinsically non-expressive item can be used for expressive purposes, from the mere display of a wedding cake or a watch.  The point of Justice Q's hypothetical, as I understood it at least, is that simply displaying a wedding cake at a wedding expresses a view about that wedding, such that a selective restriction on displaying wedding cakes at weddings could be viewpoint discrimination.  And the point of my hypothetical is that the same isn't true of watches.

Justice P:  What would you say in response to your friend's point that the mere association of a food with some event isn't enough to make it expressive?  What's wrong with saying that wedding cake is to weddings what stuffing is to Thanksgiving or flourless sponge cake is to Passover?

Solicitor General:  Justice P, besides, not to be question-begging, the artistic and expressive qualities of wedding cake, particularly that of the Petitioner, I thought my friend made a helpful concession when he distinguished between Thanksgiving turkey and cranberry sauce.  Some traditional foods are merely associated with an event, as you say, and others are expressive of traditional ideas about that event.  

Wedding cakes are symbolic of weddings, sometimes in a very literal figurative sense and sometimes in a more abstract sense, and while my friend said that a ban of wedding cake might be constitutional if it served nutritive purposes, I don't think he would really claim that it wouldn't at least raise First Amendment concerns or be subject to some level of First Amendment review.  I think he and I would both agree that you would review such a law under O'Brien, and I think he and I would both agree that if wedding cake were banned for the purpose of suppressing traditional iconography about marriage, a ban of that sort would be unconstitutional.  The same's probably true of Thanksgiving turkey, which expresses certain ideas about the traditions and history of Thanksgiving.  But I don't think that stuffing or cranberry sauce are entitled to any First Amendment protection, even if they've come to symbolize Thanksgiving by virtue of being a staple of Thanksgiving dinners over the years.

Justice P:  Let me ask you, then, about what I see as the real weak point of your argument.

Solicitor General:  By all means.

Justice P:  I'm not sure that I can see my way to a rule on which wedding cakes are speech and things like luxury watches or jewelry or furniture aren't, and that worries me, because if those things are speech, I suppose watchmakers with objections to same-sex marriage could refuse to sell their wares to a member of a same-sex couple who wanted to present them as an anniversary gift.  Perhaps you'll tell me that an anniversary dinner isn't an expressive event and a wedding is, but I frankly didn't understand that part of your brief or see on what principle you can limit your rule to some artificially described subset of expressive events.  But suppose I get over that concern.

What troubles me about your position is that I can't for the life of me see what speech the Petitioner is being compelled to make, besides some generalized thoughts about marriage that all his cakes express.  I suppose we'd all agree that a birthday cake that says "Happy Birthday So-and-So" on it expresses that So-and-So is having a birthday, the giver's wish that the birthday be a happy one, some celebratory attitude, and so on.  But are any of those messages the speech of the baker?  

For example, and maybe this is a ridiculous example, if someone wanted to testify that their spouse was a certain age, I imagine you could impeach their testimony with proof that the testifying spouse had bought their spouse a birthday cake with a number on it that was inconsistent with their testimony.  But if the baker testified to the same person's age, you couldn't impeach him with the cake, could you?  He'd just say that he wrote what he was told to write on the cake.

Solicitor General:  Justice P, I want to answer you directly, but I would first question whether any of that matters.  Compelled speech very often won't be understood as an expression of the actual views of the speaker, but this Court has held that that doesn't matter.  Compelled-speech doctrine isn't principally concerned with protecting compelled speakers from being misunderstood.  

In part, compelled-speech doctrine is about protecting compelled speakers from the internal, psychological effects of being coerced to say something they don't agree with.  And in part, compelled-speech doctrine seeks to prevent the government from creating an official orthodoxy that over time may crowd out differing views.  Colorado will tell you that Petitioner can oppose same-sex marriage in any other forum, but his business is where he has the greatest voice.  No one ever would have heard of Mr. Phillips if he only talked about his views about marriage in church.  If the state can shield people from hearing religious opposition to same-sex marriage in the marketplace, it can go a long way towards preventing people from hearing that message altogether.

Now if I could turn to your question about birthday cake, I think we agree that normally a birthday cake won't be understood as an expression of the baker's view that the recipient of the cake is turning a certain age or has a birthday worth celebrating or even is having a birthday.  But as I say, I don't think that matters.  Suppose Petitioner had a customer who belonged to a cult led by a man that claimed to be Christ, and the customer wanted to buy the cult leader a birthday cake that said "Happy 2000th Birthday, Jesus."  Of course baking that cake wouldn't be an expression of Petitioner's own view that his customer's cult leader was really 2000 years old or really Christ, and perhaps no one would make the mistake of thinking so.  But I hardly think it follows that he would have no First Amendment right against being compelled to make that cake.  Doing so would be very offensive to him, even blasphemous.

Justice P:  Of course, Colorado's public-accommodation law would never require him to make that cake, unless he was in the habit of making similar cakes for Christians celebrating Christmas.

Solicitor General:  Sure, but respectfully, the force of the hypothetical, such as it is, doesn't depend on whether Colorado would compel him to bake that cake.  The point is that whether or not a cake would be perceived to express the views of its baker, a baker could still have a free-speech objection to being compelled to bake the cake.  Being compelled to create anathematic expression for someone else to use is still compelled speech.

Justice P:  Is that also true of being compelled to sell a pre-made good to someone else so that the buyer can say something anathematic with it?  Suppose the Respondents had asked Petitioner for a pre-made cake to have at their wedding.  Is there a compelled-speech problem there?

Solicitor General:  No, because in that case the speech was complete before any compulsion kicked in.  Similarly, we don't think a songwriter could be compelled to write a song on spec for a same-sex wedding, but we absolutely think that a songwriter could be forbidden from refusing to license his songs for performance at same-sex weddings.

Justice P:  Of course I agree with the second half of that, and maybe the first, though I'd have to think about it, but isn't the force of the hypothetical that in the one instance no one would suppose the performance of some well-known song at a wedding was the songwriter's endorsement of the wedding, while in the other instance people would suppose that the songwriter had endorsed the wedding by writing a song for it?  On the other hand, I can't quite see the expressive difference between baking a cake for a same-sex wedding and selling an equally lovingly crafted pre-made cake to a same-sex wedding.  No one at the wedding would ever know the difference.  

Let me ask you, what part of your explanation of the aims of compelled-speech doctrine isn't implicated with equal force in the case of a pre-made cake as it is in the case of a custom-made cake?  The aims being, as I recall, protecting compelled speakers from psychological coercion and preventing government from establishing an orthodoxy.

Solicitor General:  Justice P, first, whether or not the purposes of compelled-speech doctrine might be furthered by extending it into the compelled sale of pre-made speech, compelled-speech doctrine can only protect speech, and in such cases there just isn't any speech to protect.  I suspect you'll want to push back on that--

Justice P:  Yes.

Solicitor General -- but if I could answer your question, I think there's a far greater problem with compelling baking a cake as far as the internal effects of coercion go, for starters.  In that case, he's coerced to bake a cake that he knows will be used to express messages contrary to his deeply held religious beliefs, really is being coerced to labor at crafting the visual representation of an idea that he profoundly disagrees with.  In the other case, he bakes a cake of his own free will, no coercion there, and then is coerced to simply sell it.  He may not like selling it, but it's a far cry from being coerced to bake the cake in the first place, just as there's no comparison between being coerced to write marriage vows for a wedding you disapprove of and selling a book you wrote with pre-written vows in it to the same couple.

Justice P:  Did you have anything on government orthodoxy?

Solicitor General:  Only a difference of degree.

Justice P:  Okay, well on pre-made cake and coercion, wouldn't Petitioner know when he's baking the pre-made cakes that some of them will be sold to same-sex weddings?  Why wouldn't that knowledge be just as painful?

Solicitor General:  Perhaps feeling a difference between the two cases is irrational, Justice P, but the psychological effects of coercion don't have to be rational.  A hit songwriter with Petitioner's religious convictions might similarly know that his songs would be played at weddings he'd disapprove of, and that he couldn't refuse to license his songs on the basis of sexual orientation, but I doubt that would affect how he felt about writing songs.  He'd feel very differently if he were compelled to write custom songs for same-sex weddings.

Justice P:  But you keep coming back to songwriters, which seem quite inapposite given the other big differences between the two songwriter hypotheticals.  Do you really imagine that if Petitioner made a large number of pre-designed cakes, and was forced to sell a fair number of them to same-sex couples, he wouldn't feel that he had been made into a mouthpiece for a pro-same-sex marriage message?

Solicitor General:  Perhaps he would and perhaps he wouldn't.  But compelled-speech doctrine isn't a panacea for feelings of complicity, nor should it be; some amount of complicity or association with views one doesn't like is the inevitable and even healthy byproduct of a public-accommodations regime.  Compelled-speech doctrine just protects speech, and there's no speech in the pre-made cake hypotheticals to protect.

Justice P:  I guess the problem with that move is that it obscures that Petitioner's objection isn't to the speech he's being compelled to create at all.  Colorado's law doesn't compel Petitioner to make some sort of same-sex-marriage-themed cake; he has to bake the same sort of cake he'd bake for an opposite-sex couple.  So the cake, as far as that goes, won't be objectionable to him, indeed will be just the sort of cake he loves designing.  His problem is the association of that cake with a same-sex wedding, but he's being compelled to associate his cake with same-sex weddings in the case of pre-made cakes, which you concede don't raise a First Amendment problem.

Solicitor General:  No, in the instance of the custom-made cake he is being compelled to bake a cake that symbolically expresses the message that the same-sex wedding for which it's bought celebrates a marriage, not some non-marriage union, and that that marriage is worthy of celebration.  When he bakes the pre-made cakes, he isn't being asked to express anything of the kind; it just happens that people subsequently buy the cakes in order to express that message.

Justice P:  But all those messages you say the first cake expresses are only placed on it by the buyer at the moment the cake is displayed.  Until then, it's just a cake that symbolically celebrates marriage in the abstract.  If the buyer sold it to another couple, it would say, if you're even right, that their marriage is worthy of celebration.  Maybe he knows the buyer will use his cake to symbolically express that their marriage is a marriage and so forth, but the same can be anticipated of the pre-made cakes.

Solicitor General:  Your Honor, I hate to come back to songwriters, but it strikes me that on this logic you would permit a state to compel a songwriter to compose a sufficiently generic love song for a same-sex couple's wedding, that you would see no difference between that case and licensing an already written song for the wedding.

Justice P:  Well yes, when it comes down to it, I don't see a difference.  If the song's just a generic treacly ballad that doesn't say anything about the couple, what's the problem?  If he wants to write more specific songs about husbands and wives, he'll have no product that public-accommodations law can compel him to sell to a same-sex couple; public-accommodations law can't make him make a product he doesn't already make.  If he wants to write generic treacly ballads that say nothing about gender or sexual orientation at all,  he's got to go on writing them for everybody and as far as his speech goes, they'll keep expressing the same generic ideas.  He may not appreciate the sorts of couples that associate his message of love and marriage with their marriages, but that's just the same problem he'd have with couples using songs he'd already written.

Solicitor General:  Is there a question there?

Friday, December 1, 2017

A Note on Carter's "Court-Packing"

As I discussed in my prior post, Professor Steven Calabresi has recently proposed that Congress create sixty-one new circuit judgeships, for a 36.1% increase in the number of regional circuit judgeships (i.e., circuit judgeships outside the Federal Circuit).  In his paper proposing this increase, he looked to a 1978 bill signed by President Carter that added thirty-five judgeships to the then ninety-seven-judge-strong courts of appeals, for a 36.1% increase, as a precedent for the propriety of a proportionate increase under President Trump.  But in response to suggestions that his proposal was a court-packing scheme, he rapidly switched tack, arguing that Carter had packed the courts, that the current composition of the courts was the result of Carter's "court-packing," and that his proposal would merely "restore the judiciary to what would have been the status quo but for Democratic court-packing" by expanding the circuit courts in proportions equal to Carter's expansion.

I have already demonstrated that Carter's so-called court-packing has no effect whatsoever on the present composition of the circuit courts.  Of Carter's fifty-six appointees to the circuit courts, only one, Judge Reinhardt, is still in active service on those courts.  And (this point is new to this post), of the thirty-five judgeships that Carter and the Democratic Congress of 1978 created (some of which Carter never got to fill), sixteen are now held by Democratic appointees, fourteen by Republican appointees, and five are vacant, with Trump nominees already down the pike in some cases.  (In the case of one such vacancy, Republicans successfully held it open for seven years after rejecting multiple Obama nominees and appear primed to fill it.)  Republican appointees will soon hold a majority of the judgeships Carter created.  There is no persisting Carter court-packing to, in Calabresi's words, "counteract."

That said, Calabresi's proposal not only can't be justified as a corrective to some present-day Carter court-packing problem; it also can't even be justified as payback for Democratic court-packing of the past.  For what Carter did was neither court-packing, nor unique to Carter, who was only the first of several presidents to expand the circuit courts at the behest of the Judicial Conference.

The circuit courts of 1978 were, in some cases, not so different from the circuit courts of today; in other cases, they were unrecognizable.  There was no Eleventh Circuit then, and the Fifth Circuit had jurisdiction over Florida, Texas, Alabama, Georgia, Mississippi, and Louisiana.  This super-circuit, which had jurisdiction over approximately 15% of the population of the country, only a little shy of the Ninth Circuit's share of the population, had only fifteen judges.  Today, the Florida-less Fifth Circuit has seventeen judges alone, and the Eleventh Circuit, which has jurisdiction over three of the former Fifth Circuit's states, has twelve.  The Ninth Circuit, even more impossibly, had only thirteen judges to hear mandatory appeals from California, Arizona, Nevada, Oregon, Washington, Idaho, Montana, Hawaii, and Alaska.  Prior to the Carter expansion, some of the Ninth Circuit's smaller states didn't have a circuit judge who sat in their state.  

According to Calabresi's own paper (see pp. 14–15), a circuit judge should only make 255 merits votes a year; on the basis of this figure, he calculates that the Ninth Circuit should have seventy-nine judges and that today's Fifth and Eleventh Circuits should have a total of 109 judges.  And given Calabresi's concern for appellate caseloads, it should interest Calabresi to know that appellate filings more than doubled from 1968 to 1978 while the size of the circuit courts remained constant.  Surely, then, Calabresi would grant that the thirteen-judge Ninth Circuit of 1978 and the fifteen-judge super-Fifth Circuit of 1978 were badly understaffed.  

So the Judicial Conference and Congress thought, apparently, when on the former's urging the latter expanded the Ninth Circuit to the more recognizable size of twenty-three judges and expanded the Fifth Circuit to twenty-six judges, or three fewer than its descendants have today.  Outside of these two profoundly understaffed super-circuits, the 1978 bill created only fourteen new judgeships in the ten other regional circuits, increasing their total size from sixty-nine to eighty-three, a rather modest 20% increase for a period in which appellate filings more than doubled.

This bill passed the House 292-112 and the Senate 67-15 (Richard Primus is mistaken in claiming it passed the Senate by voice vote—only the original Senate bill did so), with the votes of, among others, Orrin Hatch, Strom Thurmond and Dan Quayle.  I have not been able to find a list of the yeas and nays by party, but it does seem possible that a majority of Republicans in both chambers either voted against the bill or abstained.  While Republicans didn't quite call the bill a court-packing scheme, some Republicans complained that Democratic Congresses had resisted Nixon's requests for more judges, only to accede to Carter's.  But there wasn't much doubt about the need for more judges, only criticisms of the bill's failure to abolish diversity jurisdiction, to create merit selection for the district courts, and of its compromise solution to the Fifth Circuit problem (the bill allowed the Fifth Circuit to split into administrative units, as it briefly did).

It wouldn't be long before the Judicial Conference came back to Congress asking for more judges.  In 1984, during the Reagan administration, Congress created twenty-four new circuit judgeships, this time on a much more evenly spread basis; seventeen of the twenty-four were outside the Fifth, Ninth, and Eleventh Circuits, compared to the Carter bill's fourteen of thirty-five.  The bill, which was primarily concerned with reorganizing the bankruptcy courts in the wake of the Court's decision in Northern Pipeline, passed both chambers by voice vote.  Interestingly, it provided that Reagan could fill no more than eleven of the new circuit judgeships before Inauguration Day, 1985, presumably in the hope that Reagan might not get reelected, though there was never much doubt that he would.  (Even had the bill lacked this provision, the Senate never would have processed twenty-four circuit court nominations between the bill's passage on July 10 and Inauguration Day.)  Reagan did get reelected, of course, and he got to fill the remaining seats.  

Six years later, during the George H.W. Bush administration, Congress created another eleven circuit judgeships, again by voice vote in both chambers after a 387-18 vote in favor of the original House bill.  Only six of the circuits were expanded, and only one seat went to the Fifth, Ninth or Eleventh; four of the seats went to the Fourth Circuit alone, giving Bush an opportunity to fill nearly a third of its seats.  Bush, however, would only fill two; one remained vacant for eleven years until his son filled it with Clinton's renominated nominee, now-Chief Judge Roger Gregory.

In a six-year period, Reagan and Bush added thirty-five judgeships to the circuit courts, exactly the number that Carter had.  To be sure, Carter expanded the circuit courts by a somewhat greater percentage—36%, to Reagan/Bush's 26%.  I don't quite see, though, how that matters; if one party increased the size of the Court by four Justices, would the next party to do it be any less court-packers than the first?  From the perspective of 1990, both parties were responsible for creating thirty-five of the regional 167 judgeships each (putting to one side the bipartisan support for all three bills).  

Moreover, raw numbers seriously distort the two expansion's effects.  The Carter bill primarily addressed an understaffing disaster in the nation's two most populous circuits; Reagan and Bush did relatively little to them.  Whereas Carter added twenty-one judges to the super-Fifth and Ninth Circuits, Reagan and Bush added only eight to the Ninth, Fifth and Eleventh.  On the other hand, while Carter added just fourteen judgeships to the rest of the circuits, Reagan and Bush added twenty-seven.  Carter expanded these circuits by 20%; Reagan and Bush, by 33%.  

Carter, then, created a famously liberal majority on the Ninth Circuit that persists today, as many of his appointees took senior status in the '90s and were replaced by Clinton appointments.  (His impact on the Fifth Circuit was far more fleeting, as his appointees were split between the rump Fifth Circuit and the Eleventh Circuit in 1981.)  But outside the Ninth Circuit, the Reagan/Bush expansion had the greater impact.  Reagan and Bush expanded the Third Circuit by 40%, the First Circuit by 50%, the Fourth Circuit by 50%, the Tenth Circuit by 50%, and the Sixth Circuit by 45%.  Of course, these unanimously enacted expansions of the small and mid-sized regional circuits weren't court-packing.  But if that's true, what Carter did wasn't either.