In Masterpiece Cake, the Supreme Court waffled.
The Supreme Court decided the Wedding Cake Case, vindicating the baker’s refusal to create a wedding case for a same-sex couple. The baker won, the gay couple lost.
But the Court turned its decision on such an exceedingly specific fact – that members of Colorado’s thought-policing agency (the Colorado Civil Rights Commission) openly expressed their hostility to the baker’s religious beliefs – that it has no precedential value, such a prosecutorial faux pas unlikely to be committed again.
By going off on that peculiar tangent, the case waffled on its potential to defend free speech against political correctness.
Justice Clarence Thomas (joined by Justice Neil Gorsuch) would have realized that potential. They concurred in exonerating the baker because Colorado had dissed his religious beliefs, but they would have done it also because Colorado had abridged his right to secular Free Speech.
Their reasoning, in close paraphrase –
The First Amendment prohibits state laws that abridge the “freedom of speech.”
- There are regulations of speech versus regulations of conduct. Regulations of conduct generally do not abridge the freedom of speech, even if they impose “incidental burdens” on expression.
- Public-accommodations laws (like the ones requiring merchants to sell to all comers) usually regulate conduct, in prohibiting the act of discriminating against individuals in the provision of “publicly available goods, privileges, and services.”
- But they can impinge on speech, when the targeted “public accommodation,” is the conduct which constitutes speech itself, such as a public accommodations law which required the sponsor of a St. Patrick’s Day parade to include a homosexual unit. That violated the parade sponsor’s right to free speech. Parades are “a form of expression,” so requiring the sponsor to include homosexuals in the parade altered its expressive content. It forced the sponsor to “bear witness to the fact that some Irish are gay, lesbian, or bisexual,” agree that people of their sexual orientation have a claim to unqualified social acceptance, and imply that their lifestyle merits celebration – none of which the sponsor agreed with.
- Excluding gays from the parade might have been misguided, or even hurtful, but the notion that governments can mandate certain thoughts and statements in deference to some favored group or another is the antithesis of free speech.
An important corollary of the right to free speech is the right to choose not to speak, or to decide what not to say or to tailor one’s message as one sees fit.
- The baker considers himself an artist. In creating and designing custom wedding cakes, he sees their inherent symbolism, a tradition since Victorian England. A wedding cake communicates that “a wedding has occurred, a marriage has begun, and the couple should be celebrated.” That it’s common to hear people declare they don’t like eating the cake, although no wedding is without one, demonstrates that the wedding cake’s function is not sustenance but symbolism: to mark the beginning of a new marriage and to celebrate the couple. This is precisely what this baker, exercising his free speech, chooses not to say.
Could he “disassociate” himself from same-sex marriage by posting a “disclaimer” stating that Colorado law made him do it, he acted under duress, and that his baking the cake does not constitute his endorsement of gay marriage (as Colorado argued)? “This reasoning is badly misguided,” declared Justice Thomas. This argument would justify any law that compelled someone to speak and would justify any law compelling any speech.
- The government cannot compel speech, and it also cannot require speakers to affirm in one breath and disavow in the next.
- States cannot compel individuals to affirm someone else’s beliefs or force them to speak when they would prefer to remain silent.
- Government cannot compel one to speak in order to prevent him from “denigrating the dignity’” of same-sex couples, “‘asserting their inferiority,’” and subjecting them to “‘humiliation, frustration, and embarrassment.’” These justifications are completely foreign to our free speech jurisprudence.
States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified.
- “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Otherwise, government could stamp out virtually any speech at will.
Much political and religious speech will be offensive to someone. It is not the role of government to silence what may be offensive. When free speech clashes with sensibilities of listeners, the right of expression prevails..
- If the purpose of a public accommodations law’s regulation of speech is produce a society free of biases against the protected groups, that purpose is “decidedly fatal” to the law’s constitutionality, for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.
- Obergefell v. Hodges (the gay marriage case) does not diminish free speech. “It is one thing to decide that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share that view as bigoted and unentitled to express a different view. The First Amendment guarantees the right to disagree about the correctness of Obergefell and the morality of same-sex marriage (all the more so where those dissenters constitute a disfavored minority).
- “In Obergefell, I warned,” Justice Thomas concluded, “that the Court’s decision would “inevitably come into conflict with religious liberty, as individuals are confronted with demands to participate in and endorse civil marriages between same-sex couples.” This case proves that the conflict has already emerged. Because the Court’s decision vindicates the baker’s right to free exercise of religion, it seems that religious liberty has lived to fight another day.
- But, in future cases, the freedom of speech could be essential to preventing Obergefell from being used to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.”
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Public accommodations laws, invented as a shield against overt discrimination, have been taken up as a sword.
- Their original objective was to enable black Americans – the descendants of the only class of citizens excluded de jure by the Constitution – to integrate, to have equal access to housing, employment.
- They required equal access, but did not compel affirmative action (although that followed in due course).
Now, they are invoked to demand affirmative actionof thought.
- Various and sundry groups who were not derogated by the Constitution, but nonetheless conceive of themselves as victims (even to the “micro” level of “aggressions”), are not content that others “live and let them live” without antagonism. Neutrality is not enough: They demand to be “celebrated” . . . "dignified."
Leaving this issue unresolved, not re-affirming the freedom to dissent that is secular but not religious,Masterpieceis no cause for celebration.