OPED: Discrimination is not a constitutional right

Erwin Chemerinsky
Tribune News Service

There is no constitutional right to refuse service to a person based on his race or sex or religion or sexual orientation. This seems obvious and well established, yet that is precisely the issue in an important case to be argued in the U.S. Supreme Court on Tuesday: Does a business have the right to violate state law and refuse to serve gays and lesbians based on the business owner's beliefs?

Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission involves a bakery in Colorado that refused to bake a cake for a gay couple's wedding celebration. Charlie Craig and David Mullins got married in Massachusetts and wanted to celebrate their wedding where they lived in Colorado. They went to a local bakery, Masterpiece Cakeshop, and sought to purchase a wedding cake. The owner, Jack Phillips, refused to bake the cake, saying that gay marriage violated his religious beliefs.

Colorado law, like that in California and many other states, has a public accommodations law that prohibits business establishments from discriminating based on race or sex or religion or sexual orientation. The Colorado Civil Rights Commission found that Phillips violated Colorado's statute because he would bake a cake for opposite-sex couples celebrating a wedding, but not for same-sex couples. The Colorado Court of Appeals affirmed the commission's ruling against Masterpiece Cakeshop and the U.S. Supreme Court granted review.

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This should be a simple case for the Supreme Court: The government has a compelling interest in stopping discrimination. All anti-discrimination laws interfere with freedom to discriminate; there is an inherent tension between liberty and equality. But our society has made the choice for more than a half century that preventing discrimination is more important than upholding the freedom to discriminate.

Indeed, this was exactly the argument raised against the federal Civil Rights Act of 1964, which prohibits hotels and restaurants from discriminating based on race and forbids employers from discriminating based on race or sex or religion. The claim was that businesses should have the freedom to choose their customers and their employees. Congress and the courts rightly rejected this argument.

Under First Amendment law, Phillips' argument based on religious freedom is quite weak. Constitutional law is clear that people cannot seek an exemption from a general law on the ground that it burdens their religion.

The landmark case, Employment Division v. Smith (1990), involved Native Americans who sought to use peyote in their religious observances in violation of Oregon state law. The Supreme Court, in an opinion by Justice Antonin Scalia, ruled against the Native Americans and held that free exercise of religion is not violated by such a general law, even when it significantly burdens religious beliefs. Under this precedent, Phillips cannot claim that he is entitled to a religious exemption from Colorado's anti-discrimination law.

Phillips' other argument has potentially dire consequences for all laws that forbid discrimination. He contends that forcing him to bake a cake is impermissible compelled speech in violation of the First Amendment. The Court has held that the First Amendment prohibits forcing someone to speak unless the government has an overriding, crucial interest that is served.

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Phillips says that he is a "cake artist" and that baking a cake is inherently expressive activity.

But if the Supreme Court accepts Phillips' argument, then any business can discriminate by claiming that forcing it to provide services is impermissible compelled speech. If baking a case is expressive activity, then so is cooking food. Any restaurant could discriminate based on race or religion or any other ground by claiming that forcing it to serve customers is requiring it to engage in speech. All work can be described as a form of expressive activity and prohibiting discrimination always then is compelled speech.

Even accepting that baking a cake is expressive activity, there is a clear and easy answer: The government has a compelling interest in stopping discrimination. Freedom of expression is never absolute. The government's need to end discrimination, including based on sexual orientation, should be deemed to outweigh the claim of a right to discriminate.

For decades, our society has made the correct choice that it will interfere with freedom to discriminate in order to have a more just and equal society. The Supreme Court must not abandon this commitment and instead should use Masterpiece Cakeshop v. Colorado Civil Rights Commission to reaffirm it.

— Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at echemerinsky@law.berkeley.edu.