Law & the Courts

SCOTUS Gives Free-Speech Advocates Temporary Respite in Masterpiece Cakeshop

Jack Phillips at work at Masterpiece Cakeshop in Lakewood, Colo., in 2017. (Rick Wilking/Reuters)
In ruling for a Colorado baker who refused to make a cake for a same-sex wedding, the Court provided activists a small victory, but more trouble may be ahead.

‘Loose lips sink ships” was a World War II slogan warning Americans against inadvertently disclosing important secrets, such as troop ships’ sailing schedules. On Monday, the Supreme Court showed that loose lips can sink cases.

In Colorado in 2012, a Christian baker declined the request of a same-sex couple to decorate a cake for a reception celebrating their marriage in Massachusetts. The baker said that compelling him to put his expressive activity of cake artistry in the service of an act his faith condemns — and that was not legal in Colorado — would violate his First Amendment right to free speech, which includes the freedom not to speak, and to the free exercise of religion (which also is his basis for refusing to make Halloween cakes).

Rather than find, as would not have been burdensome, bakers with no objections to their request, the couple abandoned what once was the live-and-let-live spirit of the gay-rights movement. In the truculent spirit of this era, they sicced the Colorado Civil Rights Commission on the baker. It said he violated the state’s law against sexual-orientation discrimination.

On Monday, the Court held 7–2 for the baker, but only for him. Writing for the Court, Justice Anthony Kennedy (with Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer, Samuel Alito, Elena Kagan, and Neil Gorsuch joining in the judgment) concluded that the Civil Rights Commission manifested animus regarding the baker’s religious beliefs. For example, a notably obtuse member said that “despicable” rhetoric about freedom of religion had been used to justify slavery and the Holocaust.

The nation remains resolutely committed to the public-accommodations section of the 1964 Civil Rights Act, which Colorado law anticipated in an 1885 law: If you open your doors for business, you must serve all who enter. Furthermore, it is maddeningly problematic to begin carving out exemptions from obedience to laws of general applicability that are neutral regarding religion. Wedding planners, photographers, flower arrangers, even chauffeurs who have religious objections to same-sex weddings can claim, with varying degrees of plausibility, that their activities are “expressive” and therefore their varying degrees of “participation” in religious events implicate the two First Amendment provisions the baker invoked.

In this case, the court prudently avoided trying to promulgate a limiting principle that would distinguish essentially expressive conduct from that with merely negligible or incidental expressive elements. But because the principle remains unformulated, other cases will come to the court lacking the sort of convenient escape hatch that the court found in the commission’s loose lips. Looking down the road, Kennedy on Monday warned that “there are no doubt innumerable goods and services that no one could argue implicate the First Amendment.”

First Amendment protections of freedom of speech are now more comprehensively attacked than ever before. The Alien and Sedition Acts of the 1790s (which were allowed to expire), the abuses of the post–World War I “Red Scare,” and the McCarthyism of the early 1950s arose from temporary public fevers, and ended when the fevers broke. Today’s attacks, emanating from authoritarian intellectuals, will not be as transitory as a mere political mood because they are theoretical: They argue that free speech is a chimera — speech often is a mere manifestation of an individual’s retrograde socialization, a.k.a. “false consciousness,” hence it is not morally serious and does not merit protection. Or they argue that free speech is only contingently important — it should be “balanced” against superior claims, such as community harmony or listeners’ serenity.

Because attacks on freedom of speech are today ubiquitous and aggressive, its defenders understandably, but sometimes more reflexively than reflectively, support any claim that this freedom is importantly implicated, however tangentially, in this or that dispute. A danger in the cake case was that victory for the baker would make First Amendment law incoherent, even absurd: Expressive activities merit some constitutional protection, but not everything expressive is as important as speech, which America’s foundational political document protects because speech communicates ideas for public persuasion.

Friends of the First Amendment should not be impatient for the court to embark on drawing ever-finer distinctions about which commercial transactions, by which kinds of believers, involving which kinds of ceremonies, implicate the Constitution’s free-speech and free-exercise guarantees. Taking religious advice, the court on Monday acted on the principle that “sufficient unto the day is the evil thereof,” which means: Cope with today’s ample troubles and cope with tomorrow’s when they arrive, as surely they will.

© 2018, Washington Post Writers Group

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