The wedding cake case

[Dick Whitman]

Opinion | A Baker’s First Amendment Rights

Oral argument at the Supreme Court tomorrow. Same-sex couple goes into a Colorado bakery. Says they want a cake for their wedding. Baker says that he doesn't bake cakes for same-sex wedding. Couple sues. Baker says the First Amendment protects him against compelled artistic speech.

I think I agree with him. I'm interested to hear the arguments and take a look at the briefs.

From the NYT column:

If wedding cakes are expressive, whether by words or mere festive design, what’s their message? We can tell by their context since, as the court notes, a symbolic item’s context “may give meaning to the symbol.” Thus, the court found that an upside-down flag with a peace sign carried an antiwar message — protected as speech — because of the context of its display. Likewise, a wedding cake’s context specifies its message: This couple has formed a marriage. When the specific context is a same-sex wedding, that message is one Mr. Phillips doesn’t believe and cannot in conscience affirm. So coercing him to create a cake for the occasion is compelled artistic speech.

 

[QYFW]

The wedding cake case. This appears to be a lesbian wedding.

 

[User 11148]

Lots of interesting back-and-forth among the right-wingers. George F. Will says the Supremes should decide against the baker, David French says they should decide for.

I thought the New Mexico wedding photographer’s case was an abomination, but this one, I’m not quite that far down the road. I am very curious to see Justice Kennedy’s 7-step algorithm for deciding these going forward.

 

[Baron Scicluna]

The wedding cake case. This appears to be a lesbian wedding.

No it doesn't. It looks like Roy Moore's dream wedding.

 

[lcjjdnh]

And, if I understand correctly, he would SELL any cake already in his shop to the couple; it was making a new cake for the occasion that he objected to.

So I think it’s a close call. Despite being a non-religious liberal, I’m generally in favor of strong free speech rights (even for religious folks, as some liberals seem to forget), and so think this would be easy if, for example, he was refusing to put two grooms on the cake—seems to clearly violate his free speech rights. I’m not sure merely baking a cake, regardless of express message, should qualify for the same protection, although I certainly see the argument that baking the cake could implicitly endorse a message, and also appreciate he was willing to sell them a premade cake, which cuts against the idea he was engaging in purely discriminatory behavior.

 

[TigerVols]

No it doesn't. It looks like Roy Moore's dream wedding.

More like his prom nite photo.

 

[Baron Scicluna]

And, if I understand correctly, he would SELL any cake already in his shop to the couple; it was making a new cake for the occasion that he objected to.

So I think it’s a close call. Despite being a non-religious liberal, I’m generally in favor of strong free speech rights (even for religious folks, as some liberals seem to forget), and so think this would be easy if, for example, he was refusing to put two grooms on the cake—seems to clearly violate his free speech rights. I’m not sure merely baking a cake, regardless of express message, should qualify for the same protection, although I certainly see the argument that baking the cake could implicitly endorse a message, and also appreciate he was willing to sell them a premade cake, which cuts against the idea he was engaging in purely discriminatory behavior.

It's still discriminatory behavior because a gay couple would be limited to premade cakes while a heterosexual couple would be allowed either a premade cake or a new cake.

 

[tapintoamerica]

This one is fascinating. As I understand it, the baker's First Amendment claim is more about speech than religion.
It does bring up a question: Woukd the state be justified in compelling an Alabama fan/business owner to print or otherwise produce pro-Auburn stuff, for example? Or could the business owner reject on free speech grounds?
I don't know how I feel about this one, and I've read and heard a lot about it.

 

[User 11148]

And, if I understand correctly, he would SELL any cake already in his shop to the couple; it was making a new cake for the occasion that he objected to.

No, he’d also make a same-sex couple a cake (at least he said he would). Just not a wedding cake. He also won’t make anyone a Halloween cake.

Interestingly, in deciding the first appeal to the original suit, the state’s Court of Appeals seemed perfectly fine with another baker’s refusal to make a cake saying “Homosexuality is a detestable sin” and referencing Leviticus 18-22. Freedom (from compelled) speech for me, not for thee.

 

[lcjjdnh]

And, if I understand correctly, he would SELL any cake already in his shop to the couple; it was making a new cake for the occasion that he objected to.

No, he’d also make a same-sex couple a cake (at least he said he would). Just not a wedding cake. He also won’t make anyone a Halloween cake.

Interestingly, in deciding the first appeal to the original suit, the state’s Court of Appeals seemed perfectly fine with another baker’s refusal to make a cake saying “Homosexuality is a detestable sin” and referencing Leviticus 18-22. Freedom (from compelled) speech for me, not for thee.

1) I'm not seeing where we disagree on your first point, although maybe this feeds into point (2). I said he wouldn't make them a cake "for the occasion"--i.e., their wedding. Do you understand the facts to be different--that is, he would make them a cake for their wedding, but not something specifically designated a "wedding cake"? Or are you merely saying he would make a same-sex couple a cake for any other occasion (which I don't dispute)?

2) My understanding of Point 1 is what makes this a difficult question, in my mind, and why your example seems at least somewhat distinguishable. It would be one thing if he was forced to put two grooms atop the case, or something else that expressly endorsed the idea of same-sex marriage. It's another to say he must make some cake--regardless of express message--to be used at a same-sex wedding. But, again, I can also see how that would be compelled speech that is implicitly endorsing a message.

 

[User 11148]

Well, I’d assume he’d make ‘em any sort of cake for any occasion ... EXCEPT a wedding cake for their wedding. I suppose he’d make ‘em a generic celebration cake so long as they kept the nature of the celebration on the down-low.*

*This is perhaps more difficult than one would think. When my best friend's daughters have gotten married, I and he (ruefully) have enjoyed this video:

 

[Songbird]

Is there not another bakery they could've gone to?

 

[User 11148]

Is there not another bakery they could've gone to?

Actually, there was, and they did.

 

[Songbird]

Actually, there was, and they did.

Phew!

 

[lcjjdnh]

This one is fascinating. As I understand it, the baker's First Amendment claim is more about speech than religion.
It does bring up a question: Woukd the state be justified in compelling an Alabama fan/business owner to print or otherwise produce pro-Auburn stuff, for example? Or could the business owner reject on free speech grounds?
I don't know how I feel about this one, and I've read and heard a lot about it.

It seems to me much more likely the state would lose the case in the scenario you describe because to the extent they are compelling speech--and it's not clear to me they are in the baker case*--they would have a better shot of satisfying strict scrutiny in enacting laws to prevent discrimination against same-sex individuals than in protecting discrimination against Auburn fans.

*Because, again, at best they're only compelling speech that would be an implicit endorsement of same-sex marriage. They're not requiring that he put any particular message on the cake.

 

[Matt1735]

Is there not another bakery they could've gone to?

Isn't there another water fountain they could use? Isn't there another college they could attend?

 

[User 11148]

Isn't there another water fountain they could use? Isn't there another college they could attend?

I think posts such as yours come from a good place, but ...

 

[Matt1735]

I think posts such as yours come from a good place, but ...

But.... discrimination is discrimination....

 

[User 11148]

But.... discrimination is discrimination....

We tolerate all sorts of descrimination. That’s not the rub.

 

[YankeeFan]

Isn't there another water fountain they could use? Isn't there another college they could attend?

You’re a writer, right?

I’d like to hire you to ghost write my biography/political manifesto.

Of course I’m a right wing, white nationalist.

You don’t have any objection to taking this work, do you?