Tag Archives: Anti-discrimination law

Gays and Bakers: Expression or Repression?

26 Monday Feb 2018

Posted by in Discrimination, Free Speech

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A lot rides on the legal interpretation of “expression” in the gay-wedding-cake dispute. Eugene Volokh discusses a recent ruling in California in which a trial court judge ruled that the baker’s right to free expression, buttressed by her right to free exercise of religion, protected her from demands that she participate in a form of expression to which she objected. Specifically, she had no legal obligation to create a cake for the celebration of a gay couple’s wedding, according to the ruling.

The facts in the case, CA Dept. of Fair Employment and Housing v. Cathy’s Creations, are that the baker refused to bake the couple a wedding cake but expressed a willingness to sell them anything that was already available in the shop. Thus, she did not discriminate against the couple by denying them access to her “public accommodations”. She also gave the couple a referral to another baker whom she believed would be willing to produce the cake. So there were probable alternatives available to the couple, and the baker’s assistance in locating one mitigated against any harm suffered by the gay couple. That sort of mitigation is an important factor to consider in weighing the rights of conflicting parties. Courts have tended to view “dignitary harm” as less compelling than forced expression.

Volokh argues that the baker’s role in the episode did not demand expression on her part. He says the proposed cake was a pre-existing design and did not involve writing of any kind. Otherwise, Volokh would have supported the ruling. He and a coauthor discuss the distinctions between an artist (who expresses) and an artisan (who merely executes), and an expressive and a non-expressive cake, in an amicus brief, as noted in the article linked above. Here is Volokh’s summary of his view:

“While creating photographs, videos, and text would be constitutionally protected speech (so we support the right of, for instance, photographers not to photograph same-sex weddings), creating wedding cakes with no text or symbolic design on them is not.“

The Volokh article is a little confusing because the amicus brief seems to have been filed in a different but similar case, Masterpiece Bakeshop v. Colorado Civil Rights Commission, which is now before the U.S. Supreme Court. A ruling is expected this summer. Here is a transcript of the oral arguments in that case, which were heard late last year. It’s a fascinating discussion.

Volokh’s analysis is fine as far as it goes. However, a wedding cake is likely to be considered expressive to both the baker and the cake’s buyers. The baker’s effort in executing even a pre-existing design may involve meaning for her beyond mere execution, since the usual intent of a wedding cake is to celebrate a sacred union. Likewise, the baker knows that the buyers consider the cake to be expressive of their union. The baker doesn’t want any involvement in that expression, asserting that it is not for the government to intercede, forcing them to participate by producing the cake.

Does the baker’s offer to supply an existing cake (or any other bakery good) undermine their case? Does the necessity of baking a new cake for a gay wedding differ from offering a cake already on the shelf for the same purpose? That may be irrelevant to the cases at hand, because no other wedding cakes were available at the time, and freshness might demand the preparation of a new cake for such an occasion. Nevertheless, that sort of line between an acceptable sale for the baker and unacceptable expression strikes me as thin.

As for the matter of the baker’s religious beliefs and their importance to her expressive rights, Volokh derides some of the language of the ruling. Those beliefs, Volokh says, are irrelevant to the question of whether a particular kind of expression is protected or compelled:

“By the way, I take it that it’s clear that the Free Speech Clause issue can’t turn on whether Miller’s belief ‘is part of the orthodox doctrines’ of many religions, or whether it’s instead ‘trivial, arbitrary, nonsensical, or outrageous’ — the Free Speech Clause protects views regardless of whether they express views that are seen as orthodox, outrageous, or nonsensical.“

Bravo! However, when the rights of two parties are in conflict, it is appropriate to weigh any impingement upon other, secondary rights of both parties.

A disturbing aspect of these cases is that they do not turn in any way on freedom of association, a freedom that encompasses a right not to associate (since any association must be voluntary for both parties). The presumption is that the baker’s right to freely associate or not associate with whomever they please is superseded by their obligations under public accommodation laws, despite the fact that freedom of association is an enumerated right in the U.S. Constitution. While public accommodation laws have generally been found to be constitutional, those laws do not apply in all circumstances, such as when a particular product or service involves expression. But on its own, a violation of the baker’s freedom of association seems to matter less, in today’s legal environment, than abridgment of her free expression, and perhaps less than any obligation she has to provide public accommodation.

Richard Epstein gives a general treatment of the balance between freedom of association and anti-discrimination law. David Henderson has bemoaned the dilution of the freedom of association suffered in the name of non-discrimination. He does not defend discrimination on the basis of race, gender or sexual preference. Quite the contrary. However, as a matter of individual liberty, he prefers that we retain our right to associate on any basis of our choosing and pay the price imposed by the market for discrimination. For example, if you hang a sign outside your restaurant saying that you won’t serve African Americans, you are likely to suffer a loss of business from all who find your preference offensive, as many will. That solution is obviously unappealing to those who believe that participation in civil society requires public standards of equal access in private transactions. Still, there is some truth to a quote Henderson provides from an anonymous individual comparing the idea of non-discrimination in public accommodations to the “common carrier” designation:

“‘Either way, the theory boils down to “you brought forth a good or service and abracadabra you now have fewer rights”‘”.

The legal actions against the bakers in the cases discussed above rely on anti-discrimination law (in CA, the Unruh Act, and in CO, the Anti-Discrimination Act). Those laws must face limits in their application, as may be necessary in the case of compelled expression, especially expression against one’s most deeply-held convictions, religious or otherwise. The most basic question in this regard is whether the creation of the proposed wedding (or union) cakes can be described as expression. Whether the bakers are acting as mere fabricators or as artists, there is no doubt that the wedding parties desired the cakes as part of the celebration of their unions. That use of a cake constitutes expression on their part, and it is a kind of expression and an association from which the bakers would prefer to demure.

I support the right of homosexuals to enter into legal marriage, but I also support the bakers’ right to refuse the business. To invoke a phrase used by Richard Epstein in the article linked above, the world would be a better place if all agreed to simply “live and let live”.

Suit Me, Or Face a Lawsuit: Adventures In Litigationland

06 Monday Apr 2015

Posted by in Discrimination, Presumptive rights

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Racism-cartoon

Suppose that Jim and Bob, who are life partners, own and operate a company that produces signage. A church group requests a banner to read “Only one man and one woman make a marriage”. Jim and Bob are likely to be offended by the suggestion that they use their art to express such a sentiment, and I think they are entitled to refuse the business. The freedom of expression granted by the First Amendment to the U.S. Constitution protects individuals against compulsion to express things they find objectionable. Will Jim and Bob engage in discrimination if they refuse the business? You bet, but I do not think the government has a “compelling interest” to intervene on behalf of the religious group, especially if there are other businesses capable of producing the banner or if the group can produce it themselves.

Has the exercise of free expression been tested as a defense against charges of illegal discrimination? The example above dealt with discrimination by a private company against a religious group. A similar case involved New Mexico photographers who refused to shoot photos at a same-sex wedding. The plaintiffs alleged discrimination on the basis of sexual orientation, but the photographers claimed that compulsion to accept that work constituted a violation of their freedom of expression. The New Mexico Supreme Court ruled against the photographers. They appealed to the U.S. Supreme Court (SCotUS), which refused to hear the case without additional comment. While this case established a precedent in New Mexico for the compelling interest of government to enforce anti-discrimination law, the refusal of SCotUS to get involved did not create a wider precedent in favor of anti-discrimation law over free speech. There are a number of reasons why the Court might have refused to hear the case, including the fact that the suit was brought under state law, not federal law; simple prioritization across many competing cases for an always full docket; or the lack of any conflict with other court decisions.

At the link above, which was written just after the New Mexico court’s ruling, Eugene Volokh offered his views on the case:

“Is it permissible for the law to require freelance writers, composers, artists, editors, and the like to create speech that they don’t want to create? Might it even be permissible for the law to require other conduits, such as bookstores and movie theaters, to distribute speech that they don’t want to distribute? (I use ‘speech’ here in the standard First Amendment sense, which includes music, pictures, video, and the like.) … It seems to me that having to create speech, using your own creative abilities and judgments as an artist, musician, writer, or what have you, is an even deeper ‘foster[ing]’ of ‘an idea [you might] find morally objectionable’ — an even deeper intrusion on ‘individual freedom of mind’”

We often couch discussions like this in terms of “rights”, which is easily understood. However, there is a strong distinction between this framing and the actual structure of the Constitution. Rather than granting specific rights to individuals, that document presumes the existence of those rights and instead enumerates powers held by the federal government and restrictions on its exercise of those powers. For example, here is the First Amendment:

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

And below is a key excerpt from the Fourteenth Amendment, upon which much anti-discrimination law is based. Note that its prohibitions apply only to government action, not private action:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

One right that should be presumptive is that of individuals to form a union in marriage. It is not addressed explicitly in the Constitution, and perhaps that would be less important if the government were not so intricately involved in the marriage business. Property rights, estate law, taxes, and legal benefits to employees and significant others can all be dependent on the legal status of a marriage. Still, it is not obvious why the government should be anything but neutral with respect to who can be married. Even if we concede a government interest in certifying marriages (it is a source of license fee revenue), are there other reasons for government authority in this area? Call me a skeptic. In any case, the legal recognition of marriage has been left up to the states.

Laws against private discrimination are thought to derive their authority from an enumerated power in the commerce clause, in Article 1 of the Constitution. This allows Congress to “regulate commerce among the several states“. This power was traditionally held to relate only to interstate commerce, consistent with the preservation of federalist principles and states’ rights. The courts have interpreted the power more broadly at times, but it is certainly not unlimited. In the traditional context of interstate commerce, and in view of the presumptive nature of individual rights under the Constitution, this seems to be a strikingly thin rationale for regulating many kinds of private behavior, or for compelling certain activities that burden the exercise of other rights.

Returning to the example above, defending Jim and Bob for turning away the church group’s business is similar in most respects to defending the photographer in the New Mexico case, or the baker who refuses, on religious grounds, to decorate a cake with a gay wedding theme. The cases all involve a form of private discrimination and a conflict between anti-discrimination law and forms of free expression. Whether presumptive rights to free speech, religious practice, or even freedom of association can trump statutory prohibitions against discrimination, or vice versa, is unlikely to be resolved once and for all, at least not any time soon. The individual circumstances surrounding a dispute of this nature will always be helpful, if not determinative. But what sort of test can be applied in order to achieve a resolution?

When sufficient tension exists, it is up to the courts to consider the specific nature of the discrimination in question, its rationale under any presumptive rights, and whether the claimant has “protected” status under a relevant anti-discrimination law. In terms of anti-discrimination law, a line is often drawn by insisting on the universal, non-discriminatory provision of “public accommodations”. The exact meaning of this term can differ by jurisdiction, but it generally implies a sales channel for which the “doors are open”. The presence of competition and alternative providers would argue against the state’s contravention of the presumptive rights of individual sellers in order to satisfy a statuary requirement. The competitive landscape and presence of viable alternatives should be an important consideration in balancing interests in these kinds of conflicts.

Choosing to discriminate against a specific group is not costless, even when legally sanctioned. It is obvious to most business people that tolerance is more profitable than intolerance. The acceptance of this disparity was clearly articulated as a “taste” for discrimination by Gary Becker in his 1957 book, “The Economics of Discrimination“. Becker’s analysis of discrimination in the labor market noted that employers with such a “taste” are willing to pay higher wages in order to avoid hiring certain minorities. In the examples above, Bob and Jim are willing to turn away otherwise profitable business, as are the baker and the photographer. However, their tastes for discrimination do not imply economic irrationality. In all three cases, the business people hold the maintenance of certain principles to be of greater value than the foregone profits.

These issues are relevant to the recent controversy surrounding Indiana’s new Religious Freedom Restoration Act (RFRA). The context for RFRAs is narrower, as they relate to religious expression as opposed to expression generally. The first RFRA was a federal law supported by liberals in response to a conservative SCotUS decision in a dispute over the use of peyote for religious purposes. Generally, RFRAs require that the government have a compelling interest in burdening religious exercise and then must do so using the least restrictive means available. A number of individual states have passed their own RFRAs in order to carve out religious exemptions to various rules. In a recent post, Eugene Volokh discusses the history that gave rise to RFRAs, and the irony that many liberals now decry their existence, while conservatives tend to support them. The principles underlying these laws were once championed by prominent liberal members of SCotUS.

The version of the Indiana RFRA originally signed by Governor Pence would have allowed religious expression to be used as a defense in a discrimination lawsuit. Subsequently, the Indiana state legislature amended the bill with a provision stating that the law does not authorize a “provider” to refuse business from a range of protected groups, including gays and lesbians (ministers, churches and non-profits are exempted). Does this nullify the impact of the bill on free exercise of religion? Many believe so. However, the absence of positive “authorization” may not mean the courts will decide that the state of Indiana has a compelling interest in preventing a particular case of discrimination.

[An aside: One interesting approach has been suggested for businesses in the wedding industry whose owners believe that accepting work at same-sex weddings would violate their religious principles. These businesses should continue to accept business through their “public accommodations” except for customized wedding goods and services. According to this approach, they should offer the latter exclusively through binding contracts with specific churches or places of worship, thereby operating  exemptions granted to those institutions.]

Critics of the original Indiana RFRA were generally silent regarding RFRAs in 19 other states, as well as a federal RFRA signed by President Clinton. Moreover, it is clear that there has been some contrived activity from partisans on both sides (see here, here and here). At least the contrived activity demonstrates a greater depth of understanding than some of the hateful speech that I have witnessed on social media. Some would claim my example of Jim and Bob is contrived as well, but it is a plausible scenario and it shows that the tension between rights can cut both ways. A call for the legal supremacy of anti-discrimination law over presumptive rights means that the freedoms of protected groups can be abrogated as well when in conflict with another protected group.

Persecution is well known to both gays and people of faith. Both groups are certainly aware that there will always be others who do not share their views, strictures and practices, and some who may well disapprove. Both groups should be sympathetic to the notion of “live and let live”, and they should have the forbearance to avoid insisting on everyone’s direct participation in their celebrations. Some might even call this good manners. Participation (even for profit) cannot be compelled any more than approval. Regardless of what one might think of the values of outsiders who do not wish to participate, the “discriminatory” actions (or failures to act) in question are not prima facie evidence of hatred.

Jim and Bob, as well as the baker and the photographer, have broad presumptive rights under the constitution, whether they involve free speech or religious exercise. No one should be compelled to engage in expression they find objectionable without the ability to challenge it in court. Protections against discrimination are important, but they certainly do not confer the power to force others to participate in your celebrations. And why bother? Live and let live.

Postscript: Why bother, indeed! And here is Jonathan Turley on the key issue of defining an “expressive act”.