The Subway Sandwich Artist Argument; When “Religious Freedom” Isn’t About Religious Freedom

Consider this faintly ridiculous hypothetical: I am in line at my local Subway sandwich shop, ordering my favorite sub with a generous helping of hot sauce. “I’m sorry, sir,” says the person behind the counter, “but that much sriracha will simply overpower the carefully curated flavors in your sandwich. To maintain my artistic integrity, I simply cannot fulfill your request.” Seeing my puzzled look, he proudly points to his name badge, which officially declares him a “Subway sandwich artist.”

However unlikely in real life, this scenario illustrates how the arguments are being framed in the Supreme Court’s upcoming case about a baker who was found to have violated Colorado’s anti-discrimination laws when, on the basis of his religious beliefs, he refused to create a custom cake for a same-sex wedding.

This is the first in a series of articles I will be writing in advance of the December 5 oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the first major LGBT rights case the Court has accepted since affirming a constitutional right to same-sex marriage in 2015, as well as the first such case it has taken up since Justice Neil Gorsuch joined the bench.

At first blush, it might appear that Masterpiece Cakeshop is about religious freedom. Supporters of the baker, Jack Phillips, have certainly claimed it to be so in their public rhetoric. But court filings (including from the Department of Justice) suggest that next month’s arguments are far more likely to turn on a different First Amendment freedom, that of speech and expression. Like my hypothetical Subway employee, Phillips presents himself as “an artist using cake as his canvas.” If the Court agrees—if it finds that Phillips’ custom cake-making is a form of creative expression—then it will be more likely, although not certain, to conclude that he was within his rights when he refused to create a cake for a same-sex wedding reception despite readily doing so for opposite-sex ones.

Why are the arguments in Masterpiece Cakeshop primarily about expressive rather than religious freedom? The Supreme Court’s precedents concerning free speech and expression are certainly more friendly to Phillips than those concerning the free exercise of religion. In the 1990 case, Employment Division v. Smith, for example, the Court confirmed a string of earlier decisions holding that the government, in order to further some compelling interest, may adopt laws that burden the religious practice of some individuals, so long as those laws do not thereby disfavor any particular religious group.

It’s telling that the majority opinion in Smith came from the pen of the late Justice Antonin Scalia—no secularist or liberal—who wrote that to presumptively spare religious objectors from obeying such neutral laws “would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind,” including “laws providing for equality of opportunity for the races.” Scalia concluded, “The First Amendment’s protection of religious liberty does not require this.”

Scalia did, however, opine that the Court should only consider granting a religious exception if the law “involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional protections.” Scalia’s caveat invites the kind of argument that Phillips and his supporters are making in Masterpiece Cakeshop, namely, that the Colorado Civil Rights Commission’s decree that mandated Phillips to respond equally to custom orders for same- and opposite-sex wedding cakes burdened not only his religious freedom but also, and even more so, his freedom of expression.

In a series of cases stretching over many years, the Supreme Court has upheld the expressive freedom of individuals, especially artists, applying the free-speech guarantee of the First Amendment not only to the written word but also to paintings, films, music, and even public parades. It has likewise protected the freedom of expressive conduct, even such potentially offensive conduct as burning the American flag. And the Court has held that just as individuals have the freedom to speak and express themselves, they also have the freedom not to be compelled by the government into acts of speech or expression. In the 1977 case Wooley v. Maynard, for instance, the Court prohibited the state of New Hampshire from requiring citizens to display its motto, “Live Free or Die,” on their license plates.

Hence the line of reasoning that Phillips and his advocates have chosen to employ in Masterpiece Cakeshop: just as in previous free-speech cases, in regard to his custom wedding cakes the government is prohibited, in the absence of a compelling interest that can survive the strictest level of judicial scrutiny, “from demanding that artists design custom expression that conveys ideas they deem objectionable.”

Phillips’ opponents disagree with virtually every one of these premises. According to the Colorado Civil Rights Commission, his case “has nothing to do with the artistic merits of wedding cakes. It is instead about the integrity of a 150-year-old principle: when a business opens its doors to the general public, it may not reject customers because of who they are.”

The American Bar Association, in its amicus brief, likewise underscores the status of Phillips’ bakery as a place of public accommodation, a type of establishment which has long been regulated by government, including by means of non-discrimination laws. At the same time, a group of more than 200 prominent chefs and bakers, including television stars Anthony Bourdain and Marcus Samuelson, are contesting Phillips’ claim about the artistic status of his baked goods, arguing that with a very few exceptions, “food preparation is not a core First Amendment activity.”

Even libertarian law professors Eugene Volokh and Dale Carpenter, who argue that cake-making does not have a long history of being recognized as an expressive medium, cite the title that Subway gives its front-line employees in their brief urging the Court to rule against the baker, noting that just because something or someone is described in artistic terms does not automatically warrant the full protections of the First Amendment.

Both sides invoke slippery slopes of harms that they believe would follow from an adverse decision. According to Phillips, a ruling that his cake-making does not merit protections as free expression would injure “his and all likeminded believers’ freedom to live out their religious identity in the public square.” For the Civil Rights Commission, to the contrary, a victory for Phillips would provide a “license to discriminate, whether motivated by religious belief or raw animosity,” to any number of businesses whose conduct could even vaguely be said to be creative in nature. Advocates on both sides have lost no time in spelling out the specific fates that might befall religiously affiliated non-profits and small businesses on the one hand, or LGBTQ people (particularly LGBTQ people of color) and religious believers who support same-sex marriage on the other.

In 2014, New York Times columnist Ross Douthat wrote about what he then took to be the impending legalization of same-sex marriage nationwide, wondering “what settlement the victors will impose” on those who do not support gay marriage. Masterpiece Cakeshop presents the Supreme Court with a new and substantial opportunity to engage Douthat’s question. However, because arguments about same-sex marriage are so often grounded in heartfelt disagreements about religion (both among religious people and between the religious and the non-religious, a subject I will be exploring in my next column), one has to wonder whether Phillips’s reliance on his freedom of creative expression will help or hinder the Court as it seeks to offer legal clarity on one of our day’s most divisive social issues.