Saturday, June 19

On Being Right the First Time

skepticIt isn’t often that a writer gets to publish a retraction that says, essentially, “I was right the first time”. But this is one such occasion. I recently published a “Skeptic's Collection” post in which I expressed concern about what I viewed at the time as a possible infringement of the “free exercise” rights of the owners of the Sweet Cakes bakery. Citing personal religious objections, the owners of the bakery had refused to provide a wedding cake for a lesbian couple. The couple filed a complaint against Sweet Cakes, and my original understanding was that the bakery was fined for retaliating by publishing the couple’s private contact information, not for refusing to bake the cake. (Many of the privacy issues resulted from the fact that the complaint, once filed, becomes part of the public record.) Well as it turns out … I was right the first time: the fine against the bakery was indeed – as I originally thought -- for violating Oregon’s public-accommodation law. In retrospect, I think I was right to be concerned – but as it turns out, I was concerned about the wrong issue.

The case is rather confusing, not least because the final ruling holding the Kleins – owners of Sweet Cakes – liable by Oregon Bureau of Labor and Industries (BOLI) Commissioner Brad Avakian reversed the original decision of Administrative Law Judge (ALJ) Alan McCullough. I must say that, as a result of reading the PDF file of the Commissioner’s final judgment, I am much more disposed than before to (a) support the ruling that the Kleins did indeed violate Oregon’s public accommodation law, and (b) to even support the restrictions levied upon the Kleins regarding expressions of opposition to creating cakes for same-sex weddings. However, I would still insist that (b), despite being legitimate, involves an implicit caution concerning the imposition of even justifiable restrictions of free speech / expression on both textual and verbal expressions.


It would take a wickedly sharp knife to carve out space for people with strong religious convictions against gay marriage, and to do so in a manner consistent with previous public-accommodation-case “classics” like Heart of Atlanta Motel v. United States, concerning equal access to places of lodging, and Katzenbach v. McClung, concerning equal access to restaurants. The problem is that trying to carve out space for religious objections to gay weddings and other services for gay people would require an extremely restrictive reading of Supreme Court decisions like Heart of Atlanta and Katzenbach, whereby the interpretive context of both is related explicitly, strictly, and specifically to race, only race, and nothing but race. But even such a narrow construction would almost certainly not stand up to critical examination, if for no other reason than that the reasoning of the Court in both Heart of Atlanta and Katzenbach did not hinge on race or gender of sexual orientation per se, but on the powers of Congress (Article I, Section 8, para. 3) to regulate and to facilitate interstate commerce. So one could almost take either decision, or any other decision in the case law relating to access to public accommodations, do a “global” replace of “sexual orientation” for “race”, and the reasoning supporting the decision would stand. In the previous post, I was originally willing to entertain at least some vague, theoretical, notional possibility of carving out space from  deference to the First Amendment, and a misplaced optimism about being able to “engineer” some tertium quid whereby “free exercise” and public-accommodation access could coexist. As matters stand, however, I am well and duly chastened. Therefore, resolved: public accommodations must be … well … public, and impartially so, religious objections notwithstanding. (Of course, the usual exceptions apply, e.g., not serving minors in bars, etc.) One is overreaching if one allows the “free exercise” clause to trump considerations of commerce, to the detriment of everyone, including people with religious objections to same-sex marriage.

That said, however, in the specific case of Sweet Cakes, vigilance must be exercised in order to avoid overreach of a different sort that is at least as problematical as any attempt to allow public accommodations to restrict their clientele on religious grounds. Commissioner Avakian’s final judgment contains the following injunction against the owners of Sweet Cakes:

[T]he Commissioner of the Bureau of Labor and Industries hereby orders Respondents Aaron Klein and Melissa Klein to cease and desist from publishing, circulating, issuing or displaying, or causing to be published, circulated, issued or displayed, any communication, notice, advertisement or sign of any kind to the effect that any of the accommodations, advantages, facilities, services or privileges of a place of public accommodation will be refused, withheld from or denied to, or that any discrimination will be made against, any person on account of sexual orientation. (boldface added)


It is legitimate to ask how far the "any" of the injunction extends in terms of any such demurral's contents.  The Kleins are clearly -- and once again: quite properly and legitimately -- prohibited from making direct and explicit statements of non-compliance like "We will not bake cakes for same-sex weddings". But are they also prohibited from much more casual, off-the-cuff, indirect, allusive, and "over-the-shoulder / oh-by-the-way" expressions like "Back when the ALJ and BOLI were litigating our refusal to make a cake for a same-sex wedding ... ".  Hypothetically, if the Kleins complied and began making cakes for same-sex weddings while making similarly indirect public statements about their previous intent to refrain from doing so (e.g., "We are complying but under protest"), would their words constitute a violation of the injunction, their overt actions in compliance notwithstanding? Would words weigh the same as deeds? In some cases, yes, of course.  A sign in the window or a Facebook post saying "Sweet Cakes does not provide cakes for same-sex weddings" would "facially" violate the injunction. But again, and assuming the part of the injunction I quoted above is at least representative, there would seem to be  no language in the injunction that would make less explicit and less direct language permissible. "Any" is a very big word.  Not all speech is protected, of course. But free-speech case law seems to indicate that, in order for speech to forfeit its "abridgement" clause protections, there must be some "clear and present danger" -- some "compelling interest" -- sufficiently imminent, likely, reasonably foreseeable, and inimical to public welfare to justify such.  In this case, the "compelling interest" is prohibiting discrimination against a "protected class" of people -- homosexual people -- who have indisputably and historically been victims of such discrimination by forbidding certain expressions, both verbally and in print.

The problem arises because we are talking about language -- and language in the ordinary, literal, lexical sense of (in this case) English words arranged in a certain order under the rules of grammar and syntax -- something that is both notoriously and gloriously fraught with ambiguity.  (If it weren't, poetry in particular, and literature in general, would be impossible.) If we conceive of "language" more broadly, not all types of language are similarly ambiguous.  A burning cross is not.  A noose looped around the doorknob of an African-American family's house is not. But words -- "language" in the strict lexical sense -- may or may not be.  "Faggot" probably is. But "queer" ... may or may not be depending on both context and speaker.  My point is not that the injunction or its attendant restriction on the Kleins' public utterances is impermissible. Rather, whenever we are talking about restrictions on free expression in the "lexical" sense, the slipperiness and ambiguity of language counsel extreme caution as to which particular expressions are forbidden.

(To be strictly fair, it also bears noting that Melissa Klein indulges in some overreach of her own when she yields to the persecution complex that seems to be endemic to many conservative evangelical Christians and, according to a Patheos article, quoting a Fox News report, asserts that “This effectively strips us of all our First Amendment rights, ... According to the state of Oregon, we neither have freedom of religion or freedom of speech.” But their freedom of religion is limited only by the reasonable requirements of the "commerce" clause as expressed in, e.g., Heart of Atlanta and Katzenbach. And do I really have to allude to falsely yelling "Fire!" in a crowded theater?)


The Oregon Sweet Cakes case is an almost perfect smorgasbord of constitutional issues that will probably have to be eventually resolved at the level of the Supreme Court.  This is especially true when you factor in the potential complications if RFRA laws should be passed at the State level seeking to create "carve-outs" to public-accommodation cases that would allow sexuality-based demurral for reasons of religious principle and conscience. In the wake of cases like Windsor and Obergefell v. Hodges, conservatives may be expected to (attempt to) fall back on various "rear guard" actions centered on RFRAs and RFRA-like laws at the State level. Given that Title II of the 1964 Civil Rights Act, Heart of Atlanta, and Katzenbach now comprise settled law, it is difficult to envision success, even arguments based on "free exercise".  All the rights in the Bill of Rights are hedged about with reasonable and common-sense restrictions grounded in the United States being a society, not just a group of individuals flying in loose formation.

As this post clearly shows, I have been wrong before. But a successful RFRA-based challenge to the principle of impartial access to public accommodations would really, so to speak, take the cake.

James R. Cowles


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