Written by Argie Mina
On October 12, 2017, OUTLaw, Northwestern Pritzker School of Law’s LGBT affinity group, hosted a panel discussing Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, an upcoming Supreme Court case. The case centers on whether businesses can refuse service to LGBTQ customers based on their First Amendment rights to free speech and free exercise of religion. The petitioner in Masterpiece Cakeshop refused to make a rainbow cake for a same-sex marriage ceremony.
Professor Andrew Koppelman, a Northwestern constitutional law professor and scholar, opined that the petitioner’s free speech argument was stronger than the argument based on the free exercise of religion. Professor Koppelman noted three previous Supreme Court cases relevant to Masterpiece Cakeshop: West Virginia State Board of Education v. Barnette (1943), Wooley v. Maynard (1977), and Boy Scouts of America et al. v. Dale (2000).
In Barnette, the Court held that the free speech clause prohibited public schools from requiring students to recite the pledge of allegiance. Based on this case, Professor Koppelman stated, the government cannot compel people to say words with which they disagree. The Court extended prohibition against forced speech in Wooley, where it held that New Hampshire could not require citizens to display the state motto on their license plates.
In Dale, the Court held that the Boy Scouts were not required to admit a gay member because it would “affect in a significant way the group’s ability to advocate public or private viewpoints.” The First Amendment’s free speech clause, the Court reasoned, superseded New Jersey’s public accommodation laws. According to Professor Koppelman, Dale extended Barnette’s prohibition against forced speech to the form of a person: admitting a gay member was seen as a message imposed on the Boy Scouts.
Masterpiece Cakeshop argues that to compel a business to bake a cake for a gay wedding would be to compel speech in support of same-sex marriage. According to Professor Koppelman, the question is whether the government is forcing Masterpiece Cakeshop to send a message in support of same-sex marriage in the form of a rainbow cake. In other words: is a cake a message, and do Wooley and Dale apply?
Professor Koppelman suggested that the current case presents a broad political question about religious people who do not want to facilitate same-sex relationships. He believes that compromise is the solution, but that the courts are not the best equipped institution to provide the answer. Rather, Professor Koppelman opined, this is an issue better suited for the legislature.
Jamie Gliksberg, a staff attorney at LGBTQ legal advocacy organization Lambda Legal, noted that the Supreme Court has said that any conduct can be considered to include some form of speech. However, according to Ms. Gliksberg, this does not necessarily mean that all conduct is protected by the First Amendment. Ms. Gliksberg noted that the focus is not on free speech, but rather on the requirement to abide by anti-discrimination laws. She also voiced concerns that providing religious exceptions to public accommodation laws would promote some religious beliefs over others, thus creating establishment clause issues.
When asked to predict the outcome of the case, the panelists remained undecided as to which party the believed would win and whether the Court’s holding would be narrow or broad. Specifically, Professor Koppelman noted that Justice Kennedy has historically been supportive of gay rights and has also had an expansive view of free speech, which are two ideals at issue in this case.
Finally, Mike Ziri, the Director of Public Policy at Equality Illinois, an Illinois civil rights organization, commented on societal attitudes toward same-sex relationships. He noted that after the Court’s decision Obergefell v. Hodges (2015), which legalized same-sex marriage, many believed the LGBTQ community had “won” and there was nothing left to fight for. However, Mr. Ziri argued that opponents of same-sex rights have found “creative ways to fight back.” He cautioned that despite what may be considered “great laws,” the LGBTQ community is not immune to discrimination.