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by Liv Weinstein | Spring 2018

In July 2012, Charlie Craig and David Mullins walked into Masterpiece Cakeshop in Denver, expecting to place an order for their wedding cake. Instead, the shop’s owner, Jack C. Phillips, turned the couple away. “Sorry, guys,” Phillips recalls saying, “I don’t make cakes for same-sex weddings.” 

Not long after, Craig and Mullins filed a complaint with the Colorado Civil Rights Commission over Phillips’ violation of Colorado’s anti-discrimination laws. Phillips, who has been a Christian for 35 years, argues that baking a wedding cake for a gay couple’s reception—the ceremony took place in Massachusetts, as same-sex marriage was not yet legal in Colorado—would violate his deeply held religious belief that marriage should be only between a man and a woman. Likening his “art” to speech, Phillips also claims that being forced to endorse same-sex marriage with his creative talents would violate his constitutional right to freedom of speech. The Colorado Civil Rights Commission ruled in Craig’s and Mullins’ favor, as did the Colorado Court of Appeals. The Supreme Court will hear the case on December 5th, 2017. To protect our constitutional right to freedom of speech, the court should rule in Phillips’ favor. 

Phillips’ argument initially focused on maintaining his religious freedom, but, with religious freedom-based arguments meeting little success in lower courts in recent years, Phillips has shifted his claim’s focus to that of free speech.  The compelling key premise that he and the Alliance Defending Freedom, a conservative group representing him, put forth posits that art qualifies as speech. Phillips then argues that baking cakes is his art, claiming he chose the bakery’s name with care: “It says ‘masterpiece,’ which hopefully indicates painting and art.” If artistic expression is protected like speech is, and baking is his art, then to force Phillips to bake the cake seems a violation of his First Amendment right to free speech. “I have no problem serving anybody—gay, straight, Muslim, Hindu,” says Phillips, who has served Craig and Mullins previously, but he says baking a wedding cake for a gay couple “causes me to use the talents that I have to create an artistic expression that violates [my] faith.” Why should he be forced to create the “iconic centerpiece” (as the Alliance Defending Freedom put it) of an event of which he does not approve?

In likening his artistic expression to speech, Phillips argues not for his right to say what he pleases, but for his right not to say something with which he disagrees. The so-called “right not to speak” has precedence in previous Supreme Court cases. In one of them, West Virginia State Board of Education v. Barnette (1943), the court ruled that public schools could not require students to recite the Pledge of Allegiance if their religious beliefs prohibited it. Prior to the case, children of Jehovah’s Witnesses, whose religion forbids them from saluting or pledging to symbols, were often reprimanded, suspended, expelled, or sent to reformatories for refusing to recite the pledge. The court held that the West Virginia State Board of Education’s effort to compel students to recite the Pledge of Allegiance was unconstitutional. In the court’s majority opinion, Justice Robert H. Jackson wrote that individual freedoms ensured by the Bill of Rights were meant to endure beyond political majorities: “One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.” The decision in the case suggests that the right not to speak is included in those freedoms. 

A second precedent for the right not to speak was set in 1977 with the Supreme Court’s decision in Wooley v. Maynard. George Maynard, a Jehovah’s Witness, obscured the words “or Die” on his New Hampshire license plate that originally bore the motto, “Live Free or Die.” He found the statement deeply objectionable to his religious and moral beliefs, and was eventually fined and sentenced to jail time for cutting out the offending words. The Supreme Court ruled in a 6-3 majority that the state’s interests in enforcing the motto did not outweigh Maynard’s right to free speech, which, the court maintained, includes "the right of individuals to hold a point of view different from the majority and to refuse to foster … an idea they find morally objectionable."

Considering these decisive cases, it seems to follow that Phillips should not be forced to foster through his art an idea that he finds “morally objectionable”—so long as his art does, as he claims, count as speech. But does it? Considering the Founding Fathers’ reasoning behind the First Amendment, the answer is ostensibly “yes.” Freedom of speech was included in the First Amendment along with freedoms of religion, press, assembly, and petition because its purpose was always to protect general freedom of expression, not simply to protect the words we physically utter. Colonists coming to the United States were escaping an England that punished any expression “that differed from official truth.” Speech was merely a form of expression suppressed. So it only follows that art, one form of expression, should receive similar protection to that of speech, another form. To force Phillips to bake the cake would therefore violate his First Amendment right to freedom not to speak. It would be a threat to his right to exercise of free expression (or lack of expression) within the realm of the law. 

But is his refusal within the realm of the law? One of the plaintiffs’ primary arguments holds that Phillips’ action was discriminatory and violated the Colorado Anti-Discrimination Act (CADA). Specifically, it violated Colorado Revised Statutes §§24-34-301 to 24-34-804, which states, “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 services … of a place of public accommodation.” So applying CADA in this situation seems to be in direct tension with Phillips’ right to free speech. When such tension between federal and state laws appears, courts often refer to Article 6 in the Constitution, which states that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” That is, in general, federal laws trump state laws. Free speech wins. 

However, the plaintiffs may contend that this is not always true. One notable case in which state law prevailed over federal law was Employment Division v. Smith, in which two employees of a drug rehabilitation clinic were fired for smoking the hallucinogenic drug peyote during a religious ritual at their Native American Church. The Oregon Employment Division withheld their workers’ unemployment compensation because it insisted they had been fired for work-related “misconduct,” as the use of peyote was illegal in Oregon. The former employees argued that such punishment violated their First Amendment right to freedom of religion. The court ruled in favor of Oregon’s Employment Division, stating that religious practices do not exempt one from adhering to “neutral [laws] of general applicability.” Craig’s and Mullins’ legal team may argue the same: Phillips’ free practice of religion does not put him above Colorado’s generally applicable anti-discrimination laws. 

But Phillips’ defense focuses on freedom of speech, not on freedom of religion. Limiting freedom of religion in the name of public accommodation laws may seem more natural: after all, with no limits on freedom of religious practice, an individual could break any public accommodation law in the name of religion and claim protection under her constitutional freedom of religious practice. The question Phillips’ case brings up is: should laws of general applicability dictate what we express despite our protestations? Should such laws force us to make statements to which we’re fundamentally opposed? Ostensibly not: the First Amendment to the Constitution states, “Congress shall make no law … abridging the freedom of speech,” and CADA will do exactly that if the Supreme Court rules that the law requires Phillips to bake the wedding cake. Not to mention, the requirement of “Live Free or Die” on New Hampshire license plates was a law of general applicability, but it, too, was forced to surrender to the First Amendment back in 1977. 

Another key argument the plaintiffs have put forth asserts that a ruling in Phillips’ favor would deny same-sex couples the equality they were promised when same-sex marriage was legalized with Obergefell v. Hodges in 2015. But, in making its decision, the court was only addressing whether or not the Equal Protection and Due Process clauses of the Fourteenth Amendment require that a same-sex couple be granted marriage licenses and that those licenses be recognized in every state. According to Justice Kennedy’s majority opinion, a primary reason the court answered “yes” to those questions was that judicial precedence holds that the right to marry is a fundamental liberty and is therefore protected under the Equal Protection and Due Process clauses. Whether the right not to be denied service in a place of public accommodation counts as a fundamental liberty, we do not know. So, as the burden of proof lies on the side of the plaintiffs, it seems this insufficient evidence renders the “promised equality under Obergefell v. Hodges” argument ineffectual. 

Given each side’s arguments and the facts of the case, it appears that the Supreme Court would be wise in ruling in Phillips’ favor. But the court would also have to consider the implications of such a decision. And, in this case, the implications may be grave. Critics of Phillips argue that a ruling in his favor sets a precedent for discrimination of all kinds. If a baker can withhold his product citing his homophobic religious beliefs, then so can any florist, choreographer, decorator, jeweler, tailor, photographer, or other merchant whose product she might call her “art.” Furthermore, what if someone’s religious beliefs denounce interracial marriages? The effects of a decision in the defendant’s favor could set our country’s social progress back several steps.

 

Supporters of Phillips might argue that these concerns are exaggerated. If we are realistic, how many business owners in wedding services are as homophobic as Phillips? There has only been a handful of cases in which same-sex couples were denied wedding-related services in the past few years. And, as we progress as a society, homophobic businesses (and racist businesses perhaps more so) will endure increasing wrath for denying their services when fewer and fewer people are willing to patronize prejudiced establishments. Perhaps a decision in Phillips’ favor will not have grave consequences after all. 

But this response is merely speculative. The best response to the question of how to reconcile the harmful implications of a decision in Phillips’ favor may simply be that the implications of a decision in Craig’s and Mullins’ favor would be worse. If Phillips were forced to bake a cake for an event of which he does not approve, what is to stop CADA from forcing a gay baker to cater an anti-gay event for members of the famously homophobic Westboro Baptist Church? Denying them a cake would violate the anti-discrimination law, as “creed” is included on the list of characteristics for which one cannot deny someone service. Or what of forcing a Jewish tattoo artist to print a swastika on a patron’s arm? Purchasing a cake at another establishment after being rejected by the homophobic owner of the first one, while no doubt demoralizing and degrading, might be preferable to forcing individuals to make statements to which they are fundamentally opposed.  

Masterpiece Cakeshop v. Colorado Civil Liberties Commission will be a tough case. Many speculate that the court will be split almost evenly, with Justice Kennedy, a staunch supporter of both gay rights and free speech rights, casting the deciding vote. Given that art is expression, given the judicial precedence of the right not to speak, and given the shortcomings of the plaintiffs’ arguments, it appears that the court should rule in Phillips’ favor. Even given the potentially destructive implications of such a decision, the preservation of our constitutional right to freedom of speech will likely outweigh the potential harm. Freedom of speech is a cornerstone of American society, ensuring that, just as we can say what we want to say, we cannot be forced to say what we do not. We have the immense privilege of choosing for ourselves what we do and do not want to express, whether through speech, art, writing, or other media. Justice Kennedy, an ardent supporter of free speech, would be ill-advised to put that freedom in jeopardy.

REFERENCES

[1] Barnes, R. (2017, August 13). The Spurned Couple, the Baker and the Long Wait for the Supreme Court. Retrieved November 20, 2017, from https://www.washingtonpost.com/politics/courts_law/the-spurned-couple-the-baker-and-the-long-wait-for-the-supreme-court/2017/08/13/c95c7c5c-7ea8-11e7-83c7-5bd5460f0d7e_story.html?utm_term=.f33b51c2416c

[2] Employment Division, Department of Human Resources of the State of Oregon v. Smith. (n.d.). Oyez. Retrieved November 20, 2017, from https://www.oyez.org/cases/1987/86-946

[3] Kurtz, S. (2017, October 2). Supreme Court's in session with Gorsuch on board, gay wedding cake case on deck. Retrieved November 20, 2017, from http://www.foxnews.com/opinion/2017/10/02/supreme-court-s-in-session-with-gorsuch-on-board-gay-wedding-cake-case-on-deck.html

[4] Lewis, A. (2010). Freedom for the Thought That We Hate: A Biography of the First Amendment. London: Perseus Running.

[5] Liptak, A. (2017, September 16). Cake Is His ‘Art.’ So Can He Deny One to a Gay Couple? Retrieved November 20, 2017, from https://www.nytimes.com/2017/09/16/us/supreme-court-baker-same-sex-marriage.html?_r=1

[6] SCOTUS Blog http://www.scotusblog.com/wp-content/uploads/2016/08/16-111-op-bel-colo-app.pdf

[7] West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). (n.d.). Retrieved November 20, 2017, from https://supreme.justia.com/cases/federal/us/319/624/case.html

[8] "Wooley v. Maynard." Oyez, 19 Nov. 2017, www.oyez.org/cases/1976/75-1453.