A baker, a web designer and the line between customers and messages

Let me start with a sentence that will annoy people on both sides of the aisle, which, in my experience, is the sign of an honest sentence. A bakery that refuses to sell a birthday cake to a customer because of who that customer is has broken the law, and should have. A graphic artist who is told by the government that she must write a message she disbelieves has had her freedom taken, and should not have. Those two sentences are not in conflict. The whole argument, in fact, is about how to tell them apart, and the Supreme Court has now spent two cases doing exactly that.

You have heard this fight reduced to a slogan, probably on both sides. One slogan says, "Christians want a license to discriminate." The other says, "They're forcing a baker to bake a cake." Neither one describes what the Court decided, and a reader who learns the real holdings will be harder to fool in a family argument or on the evening news. So let me do it the way I like to do these things. First the opposing argument, stated at full strength, then the answer in numbered points, with the cases, and then a verdict.

The strongest version of the objection

Here is how I would put the case against the baker and the web designer if I were arguing it for a living.

"We have a rule in this country, and it is one of the great achievements of the twentieth century. A business that opens its doors to the public must serve the public. The Civil Rights Act of 1964 said so about hotels and restaurants, and the courts upheld it. States, including Colorado, extended the principle to sexual orientation. The reason is simple: when a whole community can be refused service, a person's ordinary life shrinks. A same-sex couple in a small town does not have an infinite number of bakeries to choose from. If you let one baker opt out because of his religion, you let the next one opt out for another reason, and soon you have signs in windows. A business is not a church. If you sell wedding cakes, you sell them to everyone who comes in."

That is a respectable argument, and it has history behind it. In Newman v. Piggie Park Enterprises in 1968, the owner of a South Carolina barbecue chain refused to serve Black customers and claimed his religious beliefs entitled him to do so. The Supreme Court brushed the defense aside, calling it patently frivolous. In Heart of Atlanta Motel v. United States in 1964, the Court upheld the Civil Rights Act's public-accommodations provisions. I support both of those rulings. Conservatives should say so out loud, because anyone who thinks this debate is about repealing the Civil Rights Act is arguing with a ghost.

So the objection stands on solid ground. The question is whether it covers the cases we are about to look at.

The first case: the baker

Jack Phillips owns Masterpiece Cakeshop in Lakewood, Colorado, and he is a devout Christian who has said his faith shapes how he runs his business. In July 2012, Charlie Craig and David Mullins came into the shop and asked him to make a cake for their wedding reception. Colorado did not allow same-sex marriage at that time, and the couple planned to marry in Massachusetts and celebrate in Colorado. Phillips told them he would gladly sell them other baked goods, but that he did not create wedding cakes for same-sex weddings because of his religious beliefs. The couple filed a complaint under Colorado's anti-discrimination law.

The Colorado Civil Rights Commission found against Phillips and ordered him to take remedial steps. The case reached the Supreme Court as Masterpiece Cakeshop v. Colorado Civil Rights Commission, and on June 4, 2018, the Court ruled for Phillips, 7-2, in an opinion by Justice Anthony Kennedy.

But look at why. The Court did not hold that bakers have a constitutional right to refuse same-sex weddings. It held that the state commission had shown hostility to his religion. In the commission's public hearings, one commissioner said that religion had been used to justify discrimination throughout history, citing slavery and the Holocaust, and described a religious defense as among the most despicable pieces of rhetoric. The Court noted that no other commissioner objected to those remarks. The Court said the commission's role was to be neutral, and that it was not. The Court also noted that the same commission had ruled the other way for bakers who declined to make cakes with messages opposing same-sex marriage, which showed inconsistent treatment.

So Masterpiece was a narrow ruling. It left the big question, whether a state may compel a creative professional to take part in a same-sex wedding, unanswered. That question took five more years.

The second case: the web designer

Lorie Smith runs 303 Creative, a graphic and website design company in Littleton, Colorado. She wanted to expand into designing wedding websites, but she said her Christian faith meant she could not create websites celebrating same-sex marriages. She brought a case before any customer asked her to, arguing that Colorado's public-accommodations law, if enforced against her, would force her to speak a message she did not believe.

The case was decided on stipulated facts, which means the parties agreed on what the facts were. They agreed, among other things, that Smith was willing to work with all people regardless of classifications such as sexual orientation, that she would sell her existing products and services to anyone, and that the websites she planned to create were original, customized and expressive. Her objection was only to creating a particular message.

On June 30, 2023, the Court ruled for Smith, 6-3, in an opinion by Justice Neil Gorsuch. The holding was about the Free Speech Clause, not about religion as such. The Court said that Colorado may not use its law to compel a speaker to create expressive content that communicates a message she disagrees with. It emphasized that the parties had stipulated that Smith's websites were pure speech. And it said that public-accommodations laws are well within a state's power and can still be enforced. The dissent, by Justice Sonia Sotomayor, joined by Justices Kagan and Jackson, argued that this was the first time the Court had granted a business open to the public a right to refuse service to members of a protected class, and that the decision would open a door to other refusals. That is the worry in the opposing argument, voiced by the justices who held it.

The two principles in the cases

Now here is the heart of the matter, and here is where I think the "baker versus web designer" framing helps. There are two distinct principles, and each has deep roots.

1. The antidiscrimination principle: you may not refuse people because of who they are. A business open to the public may not turn away a customer because of race, religion, sex, national origin, or, in states that protect it, sexual orientation. Phillips said he would sell the couple anything in his shop. Smith said she would serve any customer. Neither case, in the Court's own framing, was about refusing a customer.
2. The compelled-speech principle: the government may not force you to say what you do not believe. This rests on West Virginia State Board of Education v. Barnette in 1943, where the Court ruled 6-3, in an opinion by Justice Robert Jackson, that public schools could not compel students to salute the flag. Jackson wrote that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion, or force citizens to confess their faith by word or act. I discuss that case in West Virginia v. Barnette and the Flag Case That Protects Every Parent. And in Wooley v. Maynard in 1977, the Court held, 6-3, that New Hampshire could not require a Jehovah's Witness to display the state motto "Live Free or Die" on his license plate. The point is that the First Amendment protects the right not to speak as well as the right to speak.

The line between those two principles is the line between a customer and a message. A baker who refuses to sell a cake to a gay customer is refusing a person. A baker who is asked to design a custom cake with a particular message, or a designer who is asked to write a particular story, is being asked to create expression. The first is discrimination. The second may be compelled speech. And whether a particular product is expression, or just a product, is a hard question that courts will have to answer case by case.

Why the principle protects everyone

Here is a point that matters, and it is one that often gets lost: the compelled-speech principle is not a conservative principle or a religious principle. It is a principle that protects people with views the Court has never been asked about. In Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston in 1995, the Court ruled unanimously that the organizers of Boston's St. Patrick's Day parade could not be forced by a state anti-discrimination law to include a group carrying a message they did not wish to convey. That decision protected a parade run by veterans from being compelled to carry a message from a gay and lesbian group. The principle is the same. A progressive muralist should not be forced to paint a campaign mural for a candidate she opposes. A Muslim printer should not be forced to print a cartoon mocking his faith. No baker, whatever her own views, should be forced to write a message she finds hateful, which is the logic behind the commission's own decision to let bakers decline cakes carrying messages against same-sex marriage. If you want the rule to protect your side, you have to let it protect the other side.

I think this is the strongest argument for the Court's approach: it is neutral. It does not say Christians get special rights. It says that no one can be forced to be a mouthpiece. That is a principle the founders, who had experience with licensing of the press and forced oaths, would have recognized.

Answering the objection, point by point

Let me return to the opposing argument and answer it.

1. "A business open to the public must serve everyone." Yes, and neither case changes it. The Court in 2023 accepted that Smith would serve any customer. What she would not do was create a particular message. The rulings do not allow refusing customers because of who they are.
2. "Signs in windows." The worry is real, but the rulings do not support it. A shop that put up a sign saying it won't serve a class of people would be violating the law, and nothing in Masterpiece or 303 Creative says otherwise. The line the Court drew depends on whether the product is the owner's own expression.
3. "Where does it end?" The Court did not say all businesses are free to refuse any job. It focused on custom, expressive work. A caterer, a florist, a baker of standard cakes or a hotel does not become exempt just because it makes a speech-like product. Hard cases remain, and the dissent was right to say so.
4. "A small-town couple has nowhere else to go." That concern is why antidiscrimination laws exist, and the answer is that the laws still apply to ordinary goods and services. For an artisan's custom message, the freedom not to speak should outweigh the inconvenience, as it does for newspaper editors, parade organizers and the Jehovah's Witness driver.
5. "The state can be neutral." In Masterpiece, the state was not neutral. The commission's treatment of a believer's faith, and its inconsistent treatment of other bakers, is what the Court found unacceptable. A state that wants to enforce its laws has to do so without contempt for the faith of the person in front of it.

For more on the history of this principle, and how it fits with other First Amendment doctrine, see Seven Things Americans Get Wrong About the First Amendment. For how Congress responded to an earlier court ruling against religious claimants, see How 97 senators and a voice vote undid a Supreme Court decision. And for the related question about churches' own choices, why the government cannot tell a church who its ministers are shows where the line sits when the government wants to run a religious institution's personnel decisions. On the Civil Rights Act itself, a good starting place is The Civil Rights Act of 1964 and the Republican Votes That Broke the Filibuster.

The verdict

I'd put it this way. If you hang out a shingle and open your doors to the public, you serve the public. Anyone who comes through the door gets treated fairly, whatever his race, creed or orientation. That is settled law, it is good law and conservatives should defend it. But the government cannot conscript you into writing, designing, painting or singing a message that contradicts your deepest convictions. That is settled law too, and it is good law, and progressives should defend it for the day when the shoe is on the other foot. The line between customers and messages is not always easy to find. It is the right line.

The bottom line

• Masterpiece Cakeshop (2018, 7-2) turned on the Colorado commission's hostility to the baker's faith. It did not give bakers a general right to refuse.
• 303 Creative v. Elenis (2023, 6-3) held that the government cannot compel a person to create expressive work that conveys a message she rejects. The facts there were stipulated: she would serve all customers.
• Neither ruling allows a business to turn away customers because of who they are. If someone tells you it does, ask them which sentence in the opinion says so.
• The compelled-speech rule runs from Barnette (1943) through Wooley (1977) and Hurley (1995), and it protects people on every side of the debate.
• If you run a creative business, decide in advance what you will and won't create, put it in writing, apply it to every customer alike, and talk to a lawyer in your state.