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.

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