It is well known by now that cake maker Jack Phillips, proprietor of Masterpiece Cakeshop in Denver, prevailed in an opinion written by Justice Kennedy. At issue were the Colorado Civil Rights Commission’s actions in assessing Phillips’s reasons for declining to make a cake for a same-sex couple’s wedding celebration. The commission’s actions violated the free exercise clause of the First Amendment. Specifically, in Kennedy’s words:
The Commission gave “every appearance,” of adjudicating [Phillips’s] religious objection based on a negative normative “evaluation of the particular justification” for his objection and the religious grounds for it, but government has no role in expressing or even suggesting whether the religious ground for Phillips’ conscience-based objection is legitimate or illegitimate. The inference here is thus that Phillips’ religious objection was not considered with the neutrality required by the Free Exercise Clause. The State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. But the official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same.
This is a narrow ruling, as many commentators have observed, in that it does not address the fundamental issue of the right of Phillips (or anyone similarly situated) to refuse to express views contrary to his beliefs — religious or not.
Justice Thomas, in a concurring opinion (joined by Justice Gorsuch), gets it right:
The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits state laws that abridge the “freedom of speech.” When interpreting this command, this Court has distinguished between regulations of speech and regulations of conduct. The latter generally do not abridge the freedom of speech, even if they impose “incidental burdens” on expression….
Although public-accommodations laws generally regulate conduct, particular applications of them can burden protected speech. When a public-accommodations law “ha[s] the effect of declaring . . . speech itself to be the public accommodation,” the First Amendment applies with full force…. When [a Massachusetts] law required the sponsor of a St. Patrick’s Day parade to include a parade unit of gay, lesbian, and bisexual Irish-Americans, the Court unanimously held that the law violated the sponsor’s right to free speech. Parades are “a form of expression,” this Court explained, and the application of the public-accommodations law “alter[ed] the expressive content” of the parade by forcing the sponsor to add a new unit. The addition of that unit compelled the organizer to “bear witness to the fact that some Irish are gay, lesbian, or bisexual”; “suggest . . . that people of their sexual orientation have as much claim to unqualified social acceptance as heterosexuals”;and imply that their participation “merits celebration.” While this Court acknowledged that the unit’s exclusion might have been “misguided, or even hurtful,” ibid., it rejected the notion that governments can mandate“thoughts and statements acceptable to some groups or,indeed, all people” as the “antithesis” of free speech….
The parade . . . was an example of what this Court has termed “expressive conduct.” This Court has long held that “the Constitution looks beyond written or spoken words as mediums of expression,” and that “[s]ymbolism is a primitive but effective way of communicating idea.” Thus, a person’s “conduct may be ‘sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.’” Applying this principle, the Court has recognized a wide array of conduct that can qualify as expressive, including nude dancing, burning the American flag, flying an upside-down American flag with a taped-on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the American flag, and flying a plain red flag….
Phillips’ creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message—certainly more so than nude dancing….
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.”… If the only reason a public-accommodations law regulates speech is “to 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.”…
[T]he fact that this Court has now decided Obergefell v. Hodges [does not] somehow diminish Phillips’ right to free speech. [As CJ Roberts wrote in in dissenting opinion in Obergefell,] “It is one thing . . . to conclude 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. This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individuals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. [The majority opinion in ] Obergefell itself emphasized that the traditional understanding of marriage “long has been held—and continues to be held—in good faith by reasonable and sincere people here and throughout the world.” If Phillips’ continued adherence to that understanding makes him a minority after Obergefell, that is all the more reason to insist that his speech be protected….
In Obergefell, I warned that the Court’s decision would “inevitabl[y] . . . 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 Phillips’ right to free exercise, 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 [in Justice Alito’s words] to “stamp out every vestige of dissent” and “vilify Americans who are unwilling to assent to the new orthodoxy.”
That should have been the majority opinion.
The Writing on the Wall
How to Protect Property Rights and Freedom of Association and Expression
The Beginning of the End of Liberty in America
Marriage: Privatize It and Revitalize It
Equal Protection in Principle and Practice
Freedom of Speech and the Long War for Constitutional Governance
Freedom of Speech: Getting It Right