Bench Memos

Law & the Courts

Sherif Girgis on Masterpiece Cake Case

In a comprehensive essay on Public Discourse, Sherif Girgis explains why cake artist Jack Phillips has a First Amendment right not to be compelled to design and create custom wedding cakes for same-sex weddings, and he addresses and dismantles “the best ten counterarguments leveled by Colorado, by the ACLU, and by scholars who filed amicus briefs against Phillips.”

Rather than excerpt extensive parts of Girgis’s essay, I encourage you to read it in its entirety. I’ll just post here his brief summary of his argument:

Forcing Phillips to custom-design and create same-sex wedding cakes is compelled speech: it forces him to create an expressive (artistic) product carrying a message he rejects. It forces certain content onto his artistic work, in a kind of political censorship of art. And it does so without serving the type of interest that our constitutional law would consider a legitimate (much less a compelling) justification for interfering with anyone’s free speech. So Colorado’s decision violates Phillips’s First Amendment rights.

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