Having Your Cake and Eating It- Part 2: The Free Speech Aspect

In part 1, I laid out the Free Exercise claims of Masterpiece Bakeshop vs. Colorado Commission on Civil Rights- the infamous gay wedding cake controversy the Court will hear in December.  Although the owner and operator of the bakery, Jack Philips, has a fairly good argument under the Free Exercise Clause of the First Amendment, the Court may use a different tact in deciding this case: Philips’ Free Speech claims where the legal, constitutional arguments may be stronger.

The argument stresses that the First Amendment protects expression and that such expression does not extend only to spoken or written words, but also artistic creations.  He claims the First Amendment bars the state from from requiring him to create a cake whose message he disagrees with on religious grounds.  No one is disputing his religious beliefs or their sincerity.  In fact, the state is punishing him over his refusal to create such cakes.  Ironically, if Philips were an avid supporter of gay marriage, he could refuse to make a cake with an anti-gay marriage message.  The Commission counters that in such cases, it was the content of the message which they opposed which defeats their argument that they are regulating Philips’ conduct, not the message.  The logical inconsistencies in this case indicate a pro-gay agenda.

He argues that although the state has an interest in opening their licensed businesses to all people, they have no legitimate or compelling interest to force anyone to create a message with which they fervently disagree.  Even if they did have a compelling interest, the Colorado law is too broad because gay couples have no such problems finding bakers, photographers or florists elsewhere.  His decision not to make the cake creates no burden on gay couples whatsoever.  It would be a much different story if he hung a sign in his window stating “No gays allowed,” and the evidence shows that the bakery does not discriminate against gays.  Secondly, if they purchased the cake without the gay marriage endorsement (a rainbow flag theme) and had it done elsewhere, we would not have a case today.

It is this line of logic that shows that the cake itself is a form of artistic expression in that it expresses a conviction, one with which Philips disagrees.  While mainstream media outlets denigrate the argument with the dismissive “its only a cake; it’s not a Picasso” attitude, they inadvertently destroy their arguments.

The state and the gay couple counter that the law addresses conduct, not artistic expression.  It should be noted that the gay couple chose this particular shop because of its reputation of artistic expression.  This again refutes the argument that a cake cannot be expression.

Ironically, the wording of the Obergfell gay marriage decision could be Colorado’s undoing in this case.  Wedding cakes celebrate an event and a union that by law (not custom) is expressive.  Long-established marriage law holds that marriage is never just a private contract between two people, but also a public status.  This is affirmed in the marriage laws of every state, endorsed by the Supreme Court and affirmed in Obergfell in a resounding manner.  Advocates for same sex marriage relied heavily upon the fact that marriage is public and that to deny the right of marriage to same sex couples attached a stigma upon homosexual couples.

The Supreme Court has repeatedly and strongly affirmed a citizen’s right not to be associated with a message with which they disagree.  In Hurley vs. Irish American Gay, Lesbian and Bisexual Group, the courts ruled that a parade that did not want to be associated with the message of gay pride had that constitutional right.  Although somewhat different here, the same principle applies.  In that case, the speaker (the parade) did not want to be associated with the message.  The same is true in this case with the speaker being the baker.

The plaintiffs in Obergfell rode to the establishment of a constitutional right on the idea that marriage is intrinsically an expressive status in America.  In this case, they must repudiate that line of thinking altogether and instead posit that a marriage and everything that goes with it, including a wedding cake, have no expressive function whatsoever.

In effect, the state, through their actions, is compelling someone to express approval of something with which they disagree.  Consistently- right or wrong- the Court has upheld the right of anyone to disengage from speech or expression with which they disagree.  In West Virginia Board of Education vs. Barnette it was the mandatory recitation of the Pledge of Allegiance.  In Wooley vs. Maynard, it was a patriotic message on a license plate.  These were state actors, but the Supreme Court has also ruled that private businesses cannot be compelled to create or disseminate a message with which they disagree.  A message compelled by the government, which is the gist of this case, is the government dictating speech or expression.

The opponents will counter that a business is not like a street corner speaker when it sells goods or services to the public.  A customer is not paying anyone to disseminate the creator’s personal message.  As such, they argue that Hurley does not apply to commercial businesses.  Further, they argue that the First Amendment is not a license for people to avoid requirements they may find objectionable.  One can argue that the First Amendment guarantees exactly the opposite with equal and more logical veracity!

It is a cold hard fact that Masterpiece Bakeshop, if they want to remain in the business of making sought-after wedding cakes and other baked goods, be expected to keep records for tax purposes, submit his establishment and equipment to health code inspections and pay his employees a minimum wage established by law.  As a price of admission into the world of commercial business, he must also allow equal access to all people regardless of race, creed, national origin or, in Colorado’s case, sexual orientation.

However, can Jack Philips be required to, or should he be required to, or is it even necessary that he be required to say something with which he disagrees?  In other words, as a cost of being a business, should he disavow his sincere religious beliefs and act expressively in violation of his conscience?

Some argue that Philips can just stop making wedding cakes altogether and avoid these situations.  He has, in fact, done so at financial cost to his business.  But to condition the otherwise lawful exercise of his chosen profession on violating his personal beliefs seems a bridge too far and in violation of the heart of the First Amendment’s Free Speech Clause.  If the Supreme Court accepts Colorado’s arguments, then the bridge has been crossed from ensuring equal access- the purported purpose of the Colorado statute- into imposing orthodoxy with that orthodoxy dictated by the state.

In conclusion, since the LGBTQA+ community is big on “dignity,” what about the dignity of Jack Philips?  The official actions against him have, in effect, labeled him a heretic by virtue of his conscientious dissent.  As a condition of owning, operating and running a business, it is necessary that he and others check their constitutional rights at the door?

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