Even if baking a cake is a speech, it should not trump civil rights

Have you ever ordered a sandwich from Subway? If so, you may have noticed that the workers are called “sandwich artists.”

Are they artists in the true sense of the word? Are they expressing something by making the sandwich exactly how you ask?

Instinctively, many of us would say “no.” Putting cheese, meat and condiments on bread doesn’t seem to be the talk of sandwich makers, especially when they’re just following the customer’s instructions. But the Colorado Supreme Court is considering a case that isn’t far from that hypothesis. The case has significant implications for anti-discrimination protections, not only in Colorado but beyond.

In Masterpiece Cakeshop, Inc. v. Scardina, Masterpiece Cakeshop bakery refused to make a cake for Autumn Scardina after she revealed she was transgender. Specifically, Scardina asked Masterpiece to make a custom pink birthday cake with blue icing. There were no other design elements, words or messages on the cake. Masterpiece initially agreed to make the cake. But once Scardina revealed to the bakery that the cake’s colors celebrated her gender transition from male to female, the owner refused to bake the cake, saying it conflicted with her religious beliefs.

This refusal arguably violates the Colorado Anti-Discrimination Act (CADA), which prohibits discrimination based on gender identity. Masterpiece, however, argues that being forced to bake the cake would force them to express speech contrary to their religious beliefs, in violation of the First Amendment. To be protected by the First Amendment, the coerced act must be “speech,” in the sense that it must be expressive.

If the court finds that there is a violation of the First Amendment, application of Colorado’s ban on discrimination based on gender identity (and other grounds, such as sex, race or sexual orientation) will be considerably reduced.

How did we get to this place, where courts are debating whether baking a cake is speech?

This isn’t Masterpiece Cakeshop’s first rodeo. Previously, she won before the U.S. Supreme Court in a case in which the owner also refused to bake a cake, this time for a same-sex wedding. In the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the United States Supreme Court narrowly concluded that members of the Colorado Civil Rights Commission had demonstrated hostility toward the religious beliefs of the owner, Jack Phillips, when they ruled that he had discriminated against a same-sex couple who had filed a complaint.

However, more relevant to the current Masterpiece case is the U.S. Supreme Court’s decision in 303 Creative LLC v. Elenis. In another case relating to LGBTQ+ rights in Colorado, the Court ruled that the First Amendment can trump civil rights protections. In this case, a web designer refused to create a custom wedding web page for a same-sex couple because of his religious objections to same-sex marriage. Although this was a blatant violation of the CADA, the Supreme Court nonetheless allowed 303 Creative to refuse to create the web page. According to the Court, the design of the web page was expressive and therefore protected as speech by the First Amendment.

Participation in 303 Creative goes well beyond concerns related to religious freedoms. Under the Supreme Court’s reasoning, any company could deny a service purporting to produce speech to a person belonging to a protected class simply because it is philosophically or politically opposed to that group. Religious objections are not necessary.

The key question for the intersection of antidiscrimination protections and the First Amendment is whether the relevant acts qualify as speech because of their expressive character. Speech extends beyond the spoken or written word. The U.S. Supreme Court has generally taken a broad view, including things like flag burning, armbands, and parades.

The question before the Colorado Supreme Court is whether baking a cake according to the customer’s instructions constitutes expression on the part of the baker. To us, this case is more like the Subway Sandwich Artist case. You tell the artist what you want on the sandwich, and he makes it. No expression is involved. Likewise, the baker received precise instructions regarding the color of the cake. There was no creative input from the baker, and no messages were included on the cake. Indeed, as the Colorado Court of Appeals observed, Phillips generally agreed that a pink cake with blue frosting has no “particularly inherent meaning.”

There may be circumstances in which business services involve self-expression, but this is not one of them. The Colorado Supreme Court used this route to conclude that the denial of services to Scardina should violate the CADA on this very ground, which the Court of Appeals concluded.

This approach would leave a larger question unanswered: What if the baker participated in the design of the cake, like the web page designer in 303 Creative? The Colorado Court of Appeals held that “this act of creating a personalized cake…is inherently expressive and therefore entitled to the protection of the First Amendment.”