The First Amendment of the Constitution guarantees that every American enjoys the right to speak freely and to freely exercise our faith. That is true no matter how strongly we may disagree and debate with one another. But when the Supreme Court redefined what marriage means in Obergefell v. Hodges, many questioned if any of us would remain free to live out the belief that marriage is the union of one man and one woman.
That is a serious question: Both before and after Obergefell, government officials have been using the laws to crush creative professionals who created custom art celebrating marriage between a groom and bride — but could not in good conscience use their talents to celebrate any other form of marriage.
One of the first attacks landed in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case I was privileged to argue at the U.S. Supreme Court in 2017. My client, Jack Phillips, is a cake artist in Colorado who serves anyone but cannot communicate every message or celebrate every event through his art. So when asked to create a custom wedding cake for a same-sex marriage, he respectfully declined. Rather than respect his faith and conscience, Colorado prosecuted Jack.
In Jack’s case, the Colorado Human Rights Commission demonstrated outrageous hostility toward his faith. For example, it punished Jack for declining to create a cake celebrating same-sex marriage while allowing three other cake shops to decline requests for cakes criticizing same-sex marriage.
That hostility did not fly at the Supreme Court, which pointed out that Jack’s beliefs about marriage “are protected views and in some instances protected forms of expression.” And in a strong 7–2 decision, it held that Colorado’s commission denied Jack the “fair and neutral enforcement” of its laws.
Yet that left open another question posed by Jack’s case: Even if Colorado applied its laws fairly and neutrally (or at least hid its hostility), could it have forced Jack to celebrate a wedding in conflict with his religious beliefs?
That question may be answered in a very similar case, Arlene’s Flowers v. State of Washington. In Arlene’s, floral artist Barronelle Stutzman practices her art as does Jack — serving everyone but declining to celebrate same-sex marriage through her custom art.
That distinction is clear in Barronelle’s case: For almost a decade she served gay partners Rob and Curt, providing custom arrangements for Valentine’s Day and their anniversaries. It didn’t matter that they were gay, and they were much pleased by her intricate creations.
But Barronelle’s faith teaches her that marriage is a sacred and unique union between one man and one woman, and that all wedding ceremonies are inherently religious events. So when Rob asked her to do the one thing Barronelle cannot do for anyone — use her talent to take part in celebrating a wedding that conflicted with her faith and conscience — she gently took his hands and explained why she could not do what he requested. They chatted a bit about his wedding plans; she recommended some other florists, and they hugged as they parted. Clearly, this is a case where the issue was not the person but the event.
Nonetheless, the Washington attorney general sued Barronelle — both as a business owner and as an individual, putting almost everything she owns at risk — and in the course of the case amply displayed his hostility toward religion.
Barronelle’s case has already made it up to the Supreme Court once. Shortly after Masterpiece was decided, the high court reviewed her case, vacated the Washington supreme court’s decision against her, and sent it back to the lower state court for reconsideration.
Unfortunately, the Washington supreme court sidestepped Masterpiece’s condemnation of religious hostility and ruled against Barronelle again.
So on Sept. 11, Barronelle filed another petition with the U.S. Supreme Court, challenging the Washington court’s failure to properly address the open hostility against her faith and squarely posing the unanswered question from Masterpiece: Does the First Amendment permit the state to force Barronelle to use her art to celebrate a marriage that conflicts with her faith — and even force her to attend and take part in such a wedding ceremony?
That question must be soon answered because across America there are calligraphers, hand-painters, filmmakers, photographers, and many more forced to close their wedding businesses or threatened with punishment and even jail time if they don’t join in celebrating weddings that violate their faith.
I know because my colleagues and I at Alliance Defending Freedom represent many of these artists, including Telescope Media Group, which recently won its case before the U.S. Court of Appeals for the 8th Circuit, and Brush & Nib Studio, whose owners, Joanna Duka and Breanna Koski, just achieved victory at the Arizona Supreme Court. As that court wrote, “Duka and Koski’s beliefs about same-sex marriage may seem old-fashioned, or even offensive to some. But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone.”
No American should be punished or jailed because she serves all people but declines to create art that celebrates same-sex weddings. However much we disagree on what marriage means, we should agree that the government should not tell creative professionals what they must celebrate through their art.