Civil and Human Rights

OP-ED: Swing Justice John Roberts

There’s been a lot of rightful focus on Anthony Kennedy ahead of Masterpiece Cakeshop v. Colorado Civil Rights Commission, this Supreme Court term’s blockbuster case about whether commercial bakers have a constitutional right to refuse to serve same-sex couples planning their weddings. While Kennedy is likely to play a pivotal role—as he often does—Chief Justice John Roberts might ultimately himself prove to be just as important.

It’s true that Roberts is a very conservative jurist. In a number of major cases in recent years, however, he has sided with the court’s liberal wing. These cases include important First Amendment decisions in which Roberts has voted to strike down incursions on free speech and to recognize areas in which the government has the authority to regulate speech.

Roberts’ past opinions offer a road map to rejecting the free speech claim made by the bakery in question. These precedents show why the First Amendment does not give commercial vendors a constitutional license to discriminate against same-sex couples, or anyone else, for that matter.

Masterpiece Cakeshop claims that Colorado’s anti-discrimination law compels speech in violation of the First Amendment. Roberts has rejected similar claims in the past, however, insisting that courts should be wary of litigants trying to stretch First Amendment doctrine beyond recognition. On the basis of these rulings, prominent First Amendment scholars across the ideological spectrum—including UCLA School of Law professor Eugene Volokh—have weighed in, urging the justices to recognize that “antidiscrimination laws, like other laws, should not be stymied by attenuated claims of incidental burden, where no real constitutional problem is present.”

The key case is the chief justice’s 2006 opinion in the 8–0 decision Rumsfeld v. FAIR. The case involved a First Amendment challenge to the Solomon Amendment, which required universities to provide equal access to military recruiters as a condition of receiving federal funds. An association of law schools challenged the requirement, claiming that it violated the First Amendment by forcing the schools to deliver the government’s message.

In his opinion, Roberts made three key points to explain why the requirement to provide equal access to the military did not compel speech in violation of the First Amendment. Each of these three points applies equally to the bakery’s compelled speech claim in Masterpiece Cakeshop.

First, Roberts emphasized that the law “regulates conduct, not speech. It regulates what law schools must do—afford equal access to military recruiters—not what they may or may not say.” Second, any effect on speech “is plainly incidental to the Solomon Amendment’s regulation of conduct.” Legislatures have broad leeway to prohibit conduct, Roberts explained, even if that conduct is accompanied by speech. Third, Roberts found that the conduct in question was “expressive only because the law schools accompanied their conduct with speech explaining it.” That was not enough: “If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into ‘speech’ simply by talking about it.”

FAIR recognized that anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, regulate the market, not the marketplace, of ideas. As Roberts explained: “Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly means that the law should be analyzed as one regulating speech rather than conduct.” By the same reasoning, Masterpiece has no First Amendment right to violate state anti-discrimination law with impunity, closing its doors to same-sex couples.

There is no exception to these principles simply because, as Masterpiece claims, its cakes are artistic. This argument, if accepted, would create a loophole big enough for a Mack Truck. Newspapers, libraries, schools, theaters, and bookstores all have expressive missions, but they can be required to obey nondiscrimination rules and a host of other content-neutral limitations on their conduct. Bakeries are no different. While cakes may have artistic qualities, they do not inherently express a message. This is true about wedding cakes, birthday cakes, or most any other cake bakeries typically sell. Under the chief justice’s reasoning in FAIR, the refusal by a commercial business to serve a same-sex couple could only be considered expressive because of what the business owner might say about it. That is not enough to make out a First Amendment claim.

FAIR was announced early in Roberts’ tenure, but his views on the First Amendment don’t seem to have changed. Earlier this year, in Expressions Hair Design v. Schneiderman, Roberts reaffirmed FAIR’s reasoning and quoted its language. In that 8–0 decision, he stressed that a content-neutral law that regulates conduct and only “indirectly dictate[s] the content of … speech” is not subject to First Amendment attack. Roberts wrote that legislatures have broad leeway to regulate where the “law’s effect on speech would be only incidental to its primary effect on conduct.” Expressions and FAIR reflect a core principle of Chief Justice Roberts’ free speech jurisprudence: a business has no First Amendment right to be exempted from content-neutral rules prohibiting conduct. That includes public accommodations laws that prohibit discrimination against customers on the basis of race, gender, creed, and sexual orientation, among other things.

Masterpiece claims that Colorado’s public accommodations law is anything but neutral: According to the cake shop, it “favors cake artists who support same-sex marriage over those … who do not.” But this argument conflicts with another important ruling written by Roberts. As the chief justice’s 2014 opinion in McCullen v. Coakley shows, the fact that a law has a disparate impact on certain speakers doesn’t make it content-based. McCullen involved a First Amendment challenge to a law that prohibited standing within 35 feet of an entrance to an abortion clinic. Anti-abortion activists argued that the law was content-based because “it favors one viewpoint about abortion over the other.” But Roberts disagreed. “A facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics.” Because the law did not single out any speakers but rather sought to protect clinics from obstruction, Roberts refused to subject the law to strict scrutiny.

Masterpiece has urged the Supreme Court to announce a sweeping ruling that would gut public accommodations laws and subject same-sex couples—and others—to all manner of discrimination. At each turn, though, its arguments run headlong into binding First Amendment precedents authored by the chief justice. If Roberts follows these past rulings, he will vote to uphold public accommodations laws that help guarantee equal dignity for all persons, no matter whom they love.

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