The government must not force creative businesses to create messages that they oppose.
During the Masterpiece Cakeshop oral arguments at the U.S. Supreme Court on Tuesday, the two attorneys opposing cake artist Jack Phillips argued that the justices should not protect Phillips’s freedom to abstain from creating expression he disagrees with. Their primary argument was that, in their opinion, it is too difficult to draw lines protecting people’s First Amendment right against compelled speech, so the high court should not protect Jack’s rights.
But the correct answer cannot be “it is too difficult to draw a line, so no line will be drawn.” That would mean the government could force businesses to create messages, including words and symbols, that they oppose. The Supreme Court has never ruled that way.
Both attorneys arguing against Phillips admit that their theories would empower governments to compel their citizens to speak unwanted messages. While there is much overlap between their arguments, slight nuances exist. David Cole of the American Civil Liberties Union argued that the Supreme Court should conclude that anything Phillips would create under some circumstances, he must create in all contexts. The Colorado Civil Rights Commission agrees with that but gives additional leeway for creative professionals to decline to produce “offensive” messages requested by customers. Neither of these arguments provide adequate protection for First Amendment rights.
The ACLU’s line runs into the problem Led Zeppelin identified in “Stairway to Heaven”—“sometimes words have two meanings.” Justice Samuel Alito gave the thoughtful example of a customer requesting a wedding-anniversary cake with the message, “November 9, the best day in history.” A second customer asks the baker to create the same cake with the same words for a party celebrating the anniversary of Kristallnacht, which means “Night of Broken Glass” and refers to the evening on which the Nazis destroyed countless Jewish businesses in 1938. Same words, two entirely different meanings, yet the ACLU would require a cake artist to create one if he is willing to make the other.
Similar examples abound, and in each of them, the U.S. Constitution should allow creative professionals to decline to create expression that offends their conscience. For instance, a cake artist who agrees to design a rainbow cake for a Noah’s Ark–themed Sunday-school party should not be forced against his will to make the same cake for a same-sex wedding (like the one that the same-sex couple who visited Masterpiece Cakeshop eventually got for their wedding reception).
Neither should a cake artist who would craft an elephant-shaped cake for a party at the zoo be forced to create the same cake for a Republican-party celebration. Nor should a cake artist who is willing to design a cake saying “I’m dreaming of a white Christmas” for a Christmas party be required to make that cake for a party hosted by Aryan Nations. But under the ACLU’s proposed rule, none of these bakers could invoke the First Amendment to defend their decisions not to design those cakes.
And the problem with the ACLU’s proposal is not limited to cake artists. It applies to writers, singers, graphic designers, oil painters, and countless other creative professionals. For example, U.S. solicitor general Noel Francisco said during oral arguments that rejecting Phillips’ First Amendment defense would mean that the government could force a gay opera singer to perform at Westboro Baptist Church if he was willing to perform at the National Cathedral. Nothing in the Constitution supports such deep intrusions into conscience.
The state of Colorado’s arguments create additional constitutional concerns. The state court held that bakers can reject “offensive” messages but arrogated unto itself the prerogative of distinguishing offensive from non-offensive messages. This is a recipe for viewpoint discrimination.
The state court held that bakers can reject ‘offensive’ messages but arrogated unto itself the prerogative of distinguishing offensive from non-offensive messages.
Indeed, the Colorado Civil Rights Commission has proven itself unable to apply this “offensive messages” rule in an evenhanded manner. It specifically ruled that three cake artists did not discriminate on the basis of religion when they refused to create cakes with religious messages opposing same-sex marriage. The commission explained that those messages were offensive, so the cake artists’ refusals were not discrimination against the religious customer. The commission distinguished Phillips’s case by claiming that he discriminated based on who the customers were, not based on any message that would be communicated by a custom wedding cake created for a same-sex marriage.
The state thus manipulated its “offensiveness” test to exonerate businesses that operate according to viewpoints the government likes, while punishing businesses that embrace views the state opposes. Adopting “offensiveness” as the standard for any test simply creates too great a risk that the government will apply the law in a viewpoint-discriminatory manner. The Supreme Court has declined to adopt such a standard.
The rule that the Supreme Court should adopt is simple, and it’s a line that the court has drawn before. The First Amendment allows creative professionals to decline to create speech because they object to the requested message, but they may not refuse a customer because of an objection to the status of the requesting person. Adopting this message/person distinction will ensure that the law does not license status-based discrimination. And it will guarantee that there is constitutional protection for conscientious professionals like Phillips who serve all people but do not create all messages or celebrate all events.
The Supreme Court has the opportunity to meaningfully balance competing interests in a way that respects First Amendment rights. Neither the ACLU nor Colorado has offered an approach that will do that. But Jack Phillips has. We’ll have to wait until June to see which path the high court takes.