December 4, 2017

What the Constitution Says About Cakes and Compelled Speech

On Tuesday, the Supreme Court hears oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission ­— the case of the same-sex wedding cake and the baker who refused to make it.

On Tuesday, the Supreme Court hears oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission ­— the case of the same-sex wedding cake and the baker who refused to make it. A state agency ruled that the baker, Jack Phillips, was in violation of Colorado’s anti-discrimination laws and decreed that if he wishes to create wedding cakes at all, he must create them for same-sex weddings too.

But Masterpiece Cakeshop is not about gay marriage. It’s about compelled speech.

The Supreme Court settled the marriage issue in its landmark Obergefell decision in 2015. Gay and lesbian couples are free to marry anywhere in the United States, and government at every level now protects their right to do so. But can government require artists, designers, or other creative professionals to celebrate same-sex marriage through their work? Can it subject someone like Phillips — who will happily serve any customer but cannot in good conscience use his cake-design skills to communicate an endorsement of gay marriage — to prosecution, sanctions, or legal coercion?

Most Americans support same-sex marriage. A sizable minority does not. In Obergefell, the high court emphasized that dissent is entirely legitimate. “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here,” Justice Anthony Kennedy wrote in his majority opinion. While same-sex couples would no longer be barred from marrying, he added, nothing should impede the continuation of “an open and searching debate.”

Were the justices serious about that? If so — if they truly don’t want the legalization of same-sex weddings to become an excuse to persecute “decent and honorable” Americans who oppose gay marriage — they will use this case to say so. They’ll reverse the decision of the Colorado courts and uphold Phillips’s right not to support a practice he believes is wrong.

For Kennedy in particular, this case offers an exquisite opportunity to uphold two cherished principles: first, that the benefits of marriage not be denied on the basis of sexual orientation, and second, that liberty is threatened most when government seeks to control thought or speech.

In America, the state cannot force citizens to express a certain point of view. In 1943, in one of its most famous decisions, the Supreme Court ruled that West Virginia schoolchildren could not be compelled to salute the flag: “If there is any fixed star in our constitutional constellation,” Justice Robert Jackson declared, “it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

But is refusing to create a custom-designed wedding cake, a skeptic might ask, really comparable to not saluting the flag? After all, the latter is an explicit demonstration of political loyalty; the cake is just — dessert.

Yet by that logic, a painting is just décor. A song is just entertainment. Calligraphy is just fancy lettering.

That’s a dangerous argument — dangerous to the liberty of mind and conscience that the First Amendment shields. One of the many friend-of-the-court briefs filed in this case was submitted by 479 creative professionals representing all 50 states; the group comprises musicians, florists, videographers, ceramic artists, calligraphers, graphic designers, cartoonists, sculptors, and painters. Their brief urges the high court to defend the First Amendment rights of “artistic expression — regardless of the medium employed.” They make a vital point: Viewpoints and messages can be expressed in many forms, and the Bill of Rights protects them all.

This isn’t a new idea in First Amendment jurisprudence. The Supreme Court itself underscored it in a landmark case out of Boston — the 1995 St. Patrick’s Day parade controversy.

In Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, the justices ruled unanimously that the parade’s organizers, a South Boston veterans council, could not be compelled to include an LGBT group seeking to express pride in both its Irish heritage and its gay identity. The First Amendment trumped the state’s anti-discrimination statute, the court held, and the government could not force the veterans to express, through their parade, a message they didn’t agree with.

Hurley is the precedent most directly applicable to the case before the court this week, both for its resounding rejection of compelled speech and for its insistence that expression is not limited to writing and speaking.

“The Constitution looks beyond written or spoken words as mediums of expression,” Hurley affirmed. “Our cases have recognized that the First Amendment shields such acts as saluting a flag (and refusing to do so), wearing an armband to protest a war, displaying a red flag, and even … displaying the swastika.” The Constitution doesn’t protect only banners and speeches; otherwise, the First Amendment “would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll.”

Or the custom-designed edible artwork of baker Jack Phillips.

One needn’t share Phillips’s opinion of gay marriage to support his right to unmolested freedom of expression. Indeed, some groups that vigorously oppose his beliefs about matrimony have filed amicus briefs on his behalf. The right to have views that others don’t share, they know, is a quintessential American liberty.

And the right not to be prosecuted for expressing those opinions is another.

Jeff Jacoby is a columnist for The Boston Globe.

Who We Are

The Patriot Post is a highly acclaimed weekday digest of news analysis, policy and opinion written from the heartland — as opposed to the MSM’s ubiquitous Beltway echo chambers — for grassroots leaders nationwide. More

What We Offer

On the Web

We provide solid conservative perspective on the most important issues, including analysis, opinion columns, headline summaries, memes, cartoons and much more.

Via Email

Choose our full-length Digest or our quick-reading Snapshot for a summary of important news. We also offer Cartoons & Memes on Monday and Alexander’s column on Wednesday.

Our Mission

The Patriot Post is steadfast in our mission to extend the endowment of Liberty to the next generation by advocating for individual rights and responsibilities, supporting the restoration of constitutional limits on government and the judiciary, and promoting free enterprise, national defense and traditional American values. We are a rock-solid conservative touchstone for the expanding ranks of grassroots Americans Patriots from all walks of life. Our mission and operation budgets are not financed by any political or special interest groups, and to protect our editorial integrity, we accept no advertising. We are sustained solely by you. Please support The Patriot Fund today!


The Patriot Post and Patriot Foundation Trust, in keeping with our Military Mission of Service to our uniformed service members and veterans, are proud to support and promote the National Medal of Honor Heritage Center, the Congressional Medal of Honor Society, both the Honoring the Sacrifice and Warrior Freedom Service Dogs aiding wounded veterans, the National Veterans Entrepreneurship Program, the Folds of Honor outreach, and Officer Christian Fellowship, the Air University Foundation, and Naval War College Foundation, and the Naval Aviation Museum Foundation. "Greater love has no one than this, to lay down one's life for his friends." (John 15:13)

★ PUBLIUS ★

“Our cause is noble; it is the cause of mankind!” —George Washington

Please join us in prayer for our nation — that righteous leaders would rise and prevail and we would be united as Americans. Pray also for the protection of our Military Patriots, Veterans, First Responders, and their families. Please lift up your Patriot team and our mission to support and defend our Republic's Founding Principle of Liberty, that the fires of freedom would be ignited in the hearts and minds of our countrymen.

The Patriot Post is protected speech, as enumerated in the First Amendment and enforced by the Second Amendment of the Constitution of the United States of America, in accordance with the endowed and unalienable Rights of All Mankind.

Copyright © 2024 The Patriot Post. All Rights Reserved.

The Patriot Post does not support Internet Explorer. We recommend installing the latest version of Microsoft Edge, Mozilla Firefox, or Google Chrome.