2017-12-04 01:54:07 UTC
What the Constitution says about cakes and compelled speech
by Jeff Jacoby
The Boston Globe
December 3, 2017
Masterpiece Cakeshop owner Jack Phillips was prosecuted after declining to
design a custom cake for a same-sex wedding. The Supreme Court is poised to
take up the case this week.
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 antidiscrimination 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
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
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
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 antidiscrimination 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.
In a landmark 1995 case, the Supreme Court ruled 9-0 that organizers of
Boston's St. Patrick's Day could not be compelled to express, through their
parade, a message they didn't agree with.
"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
And the right not to be prosecuted for expressing those opinions is another.
(Jeff Jacoby is a columnist for The Boston Globe).
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