Bench Memos

Law & the Courts

Masterpiece Cakeshop: Can the State Force Us to Agree with Its Views?

“There’s nothing new beneath the sun,” King Solomon famously said — and very little new before the U.S. Supreme Court. Though every generation likes to believe it’s grappling with unprecedented legal challenges, the precedents are usually there, with history holding up its mirror to help us reflect on how those gone before came to grips with surprisingly similar threats to our national — and personal — convictions.

During the coming term, for instance, the High Court will hear the case of a Colorado cake artist, Jack Phillips, who has declined to use his artistic talents to design a wedding cake celebrating a same-sex wedding ceremony. It’s a faith-based position that puts him distinctly at odds with the full-court press of current social trends (at least those preferred by the media and Hollywood).

Phillips is by no means alone and by no means the first to find himself at cross-purposes with popular culture and the prevailing judicial winds. Indeed, those seeking a preview of this fall’s coming legal attractions need look no further back than 1943 and the enduring questions raised in West Virginia Board of Education v. Barnette.

As Jehovah’s Witnesses, the Barnett family discouraged their children from saluting the American flag at school. For them, the flag represented a “graven image” of the kind God pointedly disavowed in Exodus 20:4-5. They could not participate in what they viewed as a religious ceremony, nor promote a religious message with which they disagreed.

It was not — to say the least — a popular position to take on the homefront at the height of World War II. Jehovah’s Witnesses, even then, were not looked on with great esteem by those of more traditional faiths. Society at large viewed them as betrayers of the American way of life. Who would not want to salute the flag? Who would not concede America’s greatness during a fight between good and evil when so much was on the line?

Nor were the legal precedents running in the Barnetts’ direction. Just a few years earlier, in Minersville School District v. Gobitis, the Supreme Court had ruled that schools were perfectly within their rights to expel children who wouldn’t pledge to the flag. Youngsters who persisted in such disloyalty could be branded as juvenile delinquents and sent to reformatories. Their parents could actually be arrested for inciting such delinquency. The state could not afford to let such beliefs go unchecked. After Gobitis, violence against Jehovah’s Witnesses reportedly ensued in several places around the country.

In spite of the severe penalties imposed by the government, the Barnetts would not compromise their beliefs. They raised the question again with the Court, the Court reheard the case, and this time Justice Robert H. Jackson led a 6-3 majority to refute the Gobitis decision and restore to the Jehovah’s Witnesses the benefits of free speech. Jackson’s arguments have more than a passing bearing on the issues at the root of the cake artist’s case.

It would be great, Jackson suggested, if the government could ensure that a given symbol meant the same thing to everybody. Unfortunately, that’s not possible, and government efforts to make people agree on the proper meaning of a given symbol or idea (be it a flag, a wedding cake, or anything else) have always been unsuccessful. As Jackson wrote, “Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country” are not new to man but are foreign to our system of government.

Standardization of ideas about any subject — marriage included — “either by legislature, courts, or dominant political or community groups” is fundamentally undemocratic, as a later Supreme Court decision in Terminiello v. City of Chicago explained. The right to speak freely and differ on issues that matter, without fear of government punishment, is what “sets us apart from totalitarian regimes.”

While the Gobitis decision suggested that the right-or-wrong of the Jehovah’s Witnesses’ case should be decided by the state legislature – and, ultimately, by vote — Jackson contended that some issues are simply too important to be decided by popular opinion:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. 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.

What’s more, Jackson said, neither the strength nor the rightness of an idea (e.g., the greatness of America, same-sex marriage) is enhanced by the government’s ability to force someone to accept it. A social or political movement that can’t withstand some conscientious objections is built on weak ideas, indeed.

A society can’t have “rich cultural diversities,” Jackson said, without “exceptional minds,” and exceptional minds, by definition, will sometimes take exception to the popular view. “But freedom to differ is not limited to things that do not matter much,” Jackson said. “That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”

His conclusion:

If there is any fixed star in our constitutional constellation, 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 faith therein.

Just how fixed that star remains will be decided in the next Supreme Court term in the case of Jack Phillips . . . a cake artist who asks nothing more than that his government not compel him to celebrate an idea he does not believe in. In the end, that’s a right we all want to preserve.


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