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Oral arguments were recently held before the supreme court in Masterpiece Cakeshop v Colorado Civil Rights Commission. The discussion was almost exclusively about the 1st amendment's free speech provision and what kinds of business products/services convey a message and therefore should constitute protected speech. The same was true in their petition for certiorari, the replies, and the few amicus briefs I read.

My question is about a few other arguments I expected to hear. The first deals with the religious free exercise clause of the 1st amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

It was agreed upon by both sides that the baker refused to bake the cake in question on religious grounds. Is there precedent to suggest that a free exercise claim would not have prevailed?

The second argument I expected has to do with the 13th amendment of the United States constitution:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

It seems to me that the baker could have argued that being forced to provide a service that he did not want to provide constitutes involuntary servitude. I am aware that this amendment was introduced to end slavery, but I don't believe this changes what those words mean, does it? Is there precedent that suggests that this interpretation is rejected by the courts or that such an argument would not have been successful? The closest case I could find that might address this is Butler v. Perry, but this case doesn't seem to say anything about one citizen working for another, it was about citizens working for the government.

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The religious freedom argument has no legs following Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990).

Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.

With respect to the "involuntary servitude", this was dealt with in Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964). The engagement of Federal power relied on the interstate commerce clause but the current case, as a state law matter, does not need to do this. Basically, by voluntarily providing the goods/service to the public, they agree that they will provide it in accordance with the law governing that kind of commerce. They are free to not provide it to anyone but if they choose to supply it they must supply it to everyone (subject ti normal rules of commerce like the customer actually paying etc.).

  • Seems reasonable. I'm sure the baker would argue that he is providing the same set of cakes to anyone who wants them and gay wedding cakes is not on that list (also on the blacklist were Halloween cakes and obscene cakes). But since this was touched on during the arguments, it likely also wouldn't be immediately persuasive. – Matt Dec 14 '17 at 0:43
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    @Matt presumably he is free to not supply any wedding cakes – Dale M Dec 14 '17 at 0:49
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Regarding the Thirteenth Amendment claim, a similar argument reached the Supreme Court during the Civil Rights Era in Heart of Atlanta Motel v. U.S., 379 U.S. 241 (1964), and was rejected.

Quoting from the opinion of the Court:

The appellant contends [...] that, by requiring appellant to rent available rooms to Negroes against its will, Congress is subjecting it to involuntary servitude in contravention of the Thirteenth Amendment.

The Court responded:

We find no merit in the remainder of appellant's contentions, including that of "involuntary servitude." As we have seen, 32 States prohibit racial discrimination in public accommodations. These laws but codify the common law innkeeper rule, which long predated the Thirteenth Amendment. It is difficult to believe that the Amendment was intended to abrogate this principle. Indeed, the opinion of the Court in the Civil Rights Cases is to the contrary as we have seen, it having noted with approval the laws of "all the States" prohibiting discrimination. We could not say that the requirements of the Act in this regard are in any way "akin to African slavery." Butler v. Perry, 240 U. S. 328, 240 U. S. 332 (1916).

Justice Black, in his concurrence, was even less impressed by this argument, and relegated his response to a footnote:

The motel's argument that Title II violates the Thirteenth Amendment is so insubstantial that it requires no further discussion.

The appellant's other arguments were also rejected, and the lower court's decision was affirmed 9-0. The other concurrences don't seem to have mentioned this argument specifically.

There is further discussion and background of this argument in

Christopher W. Schmidt. "Defending the Right to Discriminate: The Libertarian Challenge to the Civil Rights Movement." Signposts: New Directions in Southern Legal History, Sally Hadden and Patricia Minter eds. (Athens: University of Georgia Press, 2013).

See pages 18–23. The rest of the paper is interesting reading as well, since it discusses a number of other issues and arguments that could be applied to Masterpiece Cakeshop.

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