Thomas Whitcombe† | 5 Regent J. Glob. Just. & Pub. Pol. 107

ABSTRACT

The existence of a civil society is premised on the coming together of individuals. Each of those individuals has certain rights, but some of those rights must be limited in order for a society to function. The eternal struggle of Anglo-American liberalism has been to find the proper balance between the taking of some rights with the protection of others. This tension between two fundamental needs of a democratic society has been thrust into the news recently in the cases of Mullins v. Masterpiece Cakeshop, State v. Arlene’s Flowers, and Elane Photography v. Willock. In these cases, a cake-maker, a florist, and a photographer refused to, respectively, create a custom wedding cake, create custom wedding flower arrangements, and photograph a wedding. The couples each brought suit using their state’s statute which prohibited refusing service on the basis of sexual orientation. The service providers raised two defenses based in the First Amendment: the right to be free from compelled speech and the right to free exercise of religion. While both arguments are germane to the issues presented in the cases, this Note’s purpose is to provide a more thorough and searching analysis of the individual rights that are being threatened. In particular, this Note will examine three potential bases for alternative arguments supporting the liberty interests in those cases. These potential bases include the Thirteenth Amendment and its prohibition of involuntary servitude; property law and the right to exclude; and contract law and the freedom to, or more specifically from, contract. While arguments based on these doctrines are not often raised in modern constitutional jurisprudence, a broader analysis based on these doctrines can shed light on the various interests at stake in these cases and offer new ways of thinking about the timeless struggle to balance rights in American society.

INTRODUCTION

Liberty is an illustrious concept, an ideal that fills the hearts and minds of each successive generation with promises of a better tomorrow, and a principle that serves as a foundation of western civilization. However, liberty is as elusive as it is illustrious. Sometimes, liberty is even counterintuitive. In today’s world, there are many conflicts between positive rights, those which must be given, and negative rights, those which are there to take away. In order to pursue the greatest liberty for the most people, negative rights must be emphasized, because giving positive rights to some inherently involves taking negative rights from others.

The distinction between positive and negative rights is often at the forefront of political and legal debates. The right to abortion expounded in Roe v. Wade1 is a negative right, and the Court denied the positive right to a required abortion funding in Maher v. Roe.2 The Hobby Lobby case balanced the negative right of the owners of Hobby Lobby, a closely held corporation, to their religious beliefs with the positive rights of the workers to health insurance that covered contraceptives.3 Every election there seems to be debate about taxes, freedom from which is a negative right, and social safety nets, which are positive rights. These conflicts are common place in today’s society. This Note examines one such clash.

I. THE PROBLEM

A. Masterpiece

This case juxtaposes the rights of complainants, Charlie Craig and David Mullins, under Colorado’s public accommodation laws to obtain a wedding cake to celebrate their same-sex marriage against the rights of respondents, Masterpiece Cakeshop, Inc., and its owner, Jack C. Phillips, who contend that requiring them to provide such a wedding cake violates their constitutional rights to freedom of speech and the free exercise of religion.4

In July 2012, Craig and Mullins, a same sex couple, entered Masterpiece.5 Masterpiece, located in Lakewood, Colorado, is owned by Jack Phillips.6 Mr. Phillips creates custom cakes: “Custom designs are his specialty: if you can think it up, Jack can make it into a cake!”7 Craig and Mullins asked Phillips to make them a custom cake for their wedding, but Phillips refused due to his religious beliefs.8 Mr. Phillips made it clear that he would be more than willing to sell or make them any other sort of baked good, just not a cake for their wedding.

Craig’s mother later called Phillips; he informed her that Masterpiece did not make cakes for same-sex weddings due to Phillips’s religious beliefs and because same-sex marriages were not recognized in Colorado at the time. 10 Craig and Mullins then filed charges of discrimination against Masterpiece.11

Colorado’s statute, which was the basis for the suit, declared it unlawful for a place of public accommodation to refuse to provide a service for someone, among other reasons, because of sexual orientation. 12 In Colorado, a place of “public accommodation” is “any place offering services . . . to the public . . . .” 13 Mr. Phillips defended himself by claiming the statute, as applied, violated his First Amendment rights to free exercise of religion 14 and freedom from compelled speech. 15 The Court handed down a decision in favor of Mr. Phillips, but it was on limited grounds. 16

B. Arlene’s Flowers

The state of Washington has a similar statute prohibiting discrimination by service providers.17 This statute is the basis for a case similar to Masterpiece—State v. Arlene’s Flowers, Inc. 18 Barronelle Stutzman owns Arlene’s Flowers Inc., located in Washington.19 Stutzman, though she had been happy to sell the couple flowers in the past, refused to provide flowers for the wedding of Robert Ingersoll and Curt Freed, a same-sex couple. 20 Stutzman says she then gave Ingersoll the name of another florist.21 Both the flower shop and the couple drew a slew of media attention.22 Ingersoll received a variety of offers from other florists to do his wedding about twenty times over.23 But the media coverage was far from unified; Stutzman received threats to her business, and the couple received so much attention that they scaled down their wedding and had it in their own home.24 Stutzman defended the suit on grounds similar to those in Masterpiece.25

† Law student, Northern Illinois University Law School.

1 Roe v. Wade, 410 U.S. 113 (1973).

2 Maher v. Roe, 432 U.S. 464 (1977).

3 Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 1 (2014).

4 Masterpiece Cakeshop, Ltd., v. Colo. Civ. Rts. Commission, 584 U.S. 1 (2018).

5 Id.

6 Id. at 3.

7 Masterpiece Cakeshop, https://masterpiececakes.com (last visited Oct.  8, 2018).

8 Masterpiece Cakeshop, 584 U.S. at 1.

9 Id. at 4.

10 Id.

11 Id. at 1.

12 “(2)(a) It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or, directly or indirectly, to publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement that indicates that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation will be refused, withheld from, or denied an individual or that an individual’s patronage or presence at a place of public accommodation is unwelcome, objectionable, unacceptable, or undesirable because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry.” COLO. REV . S TAT. § 24-34-601(2)(a)(2018).

13 Masterpiece Cakeshop, 584 U.S. at 5.

14 Id. at 7.

15 Id.

16 See id. at 18.

17 “(1) It shall be an unfair practice for any person or the person’s agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public resort, accommodation, assemblage, or amusement, except for conditions and limitations established by law and applicable to all persons, regardless of race, creed, color, national origin, sexual orientation, sex, honorably discharged veteran or military status, status as a mother breastfeeding her child, the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a person with a disability: PROVIDED, That this section shall not be construed to require structural changes, modifications, or additions to make any place accessible to a person with a disability except as otherwise required by law: PROVIDED, That behavior or actions constituting a risk to property or other persons can be grounds for refusal and shall not constitute an unfair practice.” WASH. REV. CODE ANN. § 49.60.215(1)(LexisNexis 2011).

18 State v. Arlene’s Flowers, Inc., 389 P.3d 543, 551 (Wash. 2017).

19 Id. at 548.

20 Id.

21 Id. at 549.

22 Id.

23 Barronelle Stutzman, I’m a Florist, but I Refused to Do Flowers for My Gay Friend’s Wedding, THE WASHINGTON POST (Jan. 10, 2018), https://www.washingtonpost.com/posteverything/wp/2015/05/12/im-a-florist-but-i-refused-to-do-flowers-for-my-gay-friends-wedding/?utm_term=.3a3c313b6351).

24 Arlene’s Flowers, 389 P.3d at 549.

25 Id. at 552.