By: Ashira Pollack | Features  | 

Law Review: Expressive Conduct — Food for Thought

On June 4, 2018, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the United States Supreme Court ruled 7-2 in favor of Jack Phillips, owner of Masterpiece Cakeshop. This effectively concluded the case that had prompted a contentious debate which held the entire nation captive. However, the verdict spurred an avalanche of legal questions, many of which still remained. This article addresses one of these questions: Should a custom-made wedding cake constitute expressive conduct, and, therefore, be included in protected speech under the Constitution’s First Amendment?


Mr. Phillips, a devout Christian, declined to create and sell a custom wedding cake to same-sex couple Mr. Charlie Craig and Mr. David Mullins, arguing that doing so would be in conflict with his religious beliefs. His attorneys asserted that a custom wedding cake should constitute expressive conduct and should, therefore, be protected under the Free Speech clause of the Constitution’s First Amendment. They also claimed that Mr. Phillips should be able to exercise his religious beliefs by declining to bake a custom wedding cake as protected under the Free Exercise clause of the Constitution’s First Amendment.

Craig and Mullins argued that Phillips had discriminated against them on the basis of their sexual orientation. Their attorneys asserted that Phillips must bake the couple a wedding cake given that Colorado’s public accommodation laws prohibit discrimination on the basis of sexual orientation. They also argued that the cake should not qualify as expressive conduct and therefore should not be protected under the Free Speech clause.

Craig and Mullins brought a lawsuit against Phillips in Craig v. Masterpiece Cakeshop, in which the lower court ruled in favor of Craig. Phillips then proceeded to appeal the decision to the United States Supreme Court in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The Court overturned the decision of the lower court, ruling in favor of Masterpiece Cakeshop. The Court did so, not because it recognized the cake as speech, but due to the “religious hostility on the part of the State itself” in the administrative hearing of Craig v. Masterpiece Cakeshop, which violated the “State’s obligation of religious neutrality” as protected under the First Amendment’s Free Exercise clause. Although the focus was on the “religious hostility on the part of the State itself,” what is the argument for a custom-made wedding cake constituting expressive conduct? Should the cake be protected as speech under the Free Speech clause? Why or why not?

The Free Speech Clause of the First Amendment

The Free Speech clause reads “Congress shall make no law...abridging the freedom of speech.” Law professor David L. Hudson Jr. explains that this clause not only prohibits the government from punishing speech, but also “prevents the government from punishing a person for refusing to articulate, advocate, or adhere to the government’s approved messages.” The prime example of this is the Supreme Court’s decision in West Virginia State Board of Education v. Barnette (1943), in which the court ruled that a state cannot force children to stand for or salute the flag and recite the Pledge of Allegiance. As seen in Texas v. Johnson, 491 U.S. 397 (1989), freedom of speech also includes the right to engage in symbolic speech, for example, burning the flag in protest.

Expressive Conduct as Protected Speech

As clarified by Andrew Jensen in his article “Compelled Speech, Expressive Conduct, and Wedding Cakes: A Commentary on Masterpiece Cakeshop v. Colorado Civil Rights Commission” in Duke Journal of Constitutional Law & Public Policy (April 2018), included in symbolic speech is expressive conduct. In the ruling of West Virginia State Board of Education v. Barnette (1943), “Chief Justice Hughes led [the] Court in holding that the display of a red flag as a symbol of opposition by peaceful and legal means to organized government was protected by the free speech guarantees of the Constitution” (Jensen 149). That is to say, expressive conduct was understood as symbolic action, even if such action did not include distinct symbols such as words or letters.

Two-Pronged Test for Expressive Conduct

To determine if an action constitutes expressive conduct — and therefore protected speech — courts have adopted a two-pronged test as used in Texas v. Johnson, 491 U.S. 397 (1989): (a) Is the conduct “traditionally protected?” (Jensen 150) (b) If the conduct is not traditionally protected, was there “intent to convey a particularized message…[and great] likelihood that the message would be understood by those who viewed it?” (Jensen 151).

In Masterpiece Cakeshop v. Colorado Civil Rights Commission, Phillips argued that the wedding cake he was asked to create would pass this two-pronged test and should qualify as expressive conduct. Under the first prong, he asserted that his cake was a form of art and art is a form of conduct that is traditionally protected. Under the second prong, even if the Court did not recognize his cake as a form of art, “wedding cakes, to Phillips, play an integral role in wedding ceremonies and are inherently meaningful and celebratory…,[and if] guests of Craig and Mullins saw them celebrate their commitment with a Masterpiece cake created by Phillips, they would take this to mean that Phillips approves of and is celebrating the marriage as well, contrary to his true feelings” (Jensen 153).

Craig and Mullins argued that Phillips’s cake should not constitute expressive conduct because it is not generally thought of as art nor would be understood as expressive by their guests. Furthermore, even if the cake was to be considered as artistic expression, Masterpiece Cakeshop is a bakery that is open to the public. Therefore, Phillips is subject to public accommodation laws, laws that are both neutral and generally applicable, which prohibit discrimination on the basis of sexual orientation.

How Have the Courts Ruled?

In Craig v. Masterpiece Cakeshop, the lower court ruled in favor of Craig, rejecting Phillips’s claim that requiring him to bake a cake would violate his freedom of speech. In Masterpiece Cakeshop v. Colorado Civil Rights Commission, although the Supreme Court ruled in favor of Masterpiece Cakeshop, Justice Thomas noted that “the Court does not hold that wedding cakes are speech or expression entitled to First Amendment protection.”

Legalities Aside

What is legal and what is right do not always converge. While Justice Thomas’s comments may have been legally correct and in accordance with precedent, the practical applications of this policy may lead to dissonant outcomes. The beauty of capitalism is its voluntary nature. This beauty manifests itself when a vendor willingly engages in a transaction with a willing customer. When either party’s hand is forced, no matter the justification, it distorts the entire process, perverting a free market exchange and possibly damaging the social fabric involved. One could argue: If a vendor discriminates, let everyone see his or her act of discrimination, and then choose — voluntarily — whether or not to continue to patronize the vendor. Those who discriminate for evil purposes will be seen as just that — evil, and will, without the intervention of a court, soon be run out of business.


Photo Caption: The Supreme Court of the United States
Photo Credit: Wikimedia Commons