November 30, 2017


The Christian Baker's Unanswered Legal Argument: Why the Strongest Objections Fail (Sherif Girgis, November 29th, 2017, Public Discourse)

[P]hillips's case is very strong. It is based on freedom-of-speech doctrines favored by conservatives and liberals alike. One argument for Phillips in particular survives the best objections leveled in briefs filed by the Colorado Civil Rights Commission, by the ACLU (on behalf of the couple who sought the cake), and by several constitutional law scholars.

That argument rests on the widely acknowledged principle that freedom of speech has to include the freedom not to speak. You aren't free to express your convictions authentically if the state can make you affirm its own orthodoxies. Thus, for more than seventy years, in cases widely seen as more American than apple pie, the Supreme Court has said government can't force you to say, do, or make something that carries a message you reject. Applying that principle, it has held that the government can't force Jehovah's Witnesses to salute the flag. It can't force newspapers to carry columns by politicians criticized in their pages. It can't force drivers to carry license plates with a state-imposed (though utterly banal) slogan ("Live Free or Die"). It can't force companies to include third-party messages in their billing envelopes. Political majorities are entitled to enact their beliefs into law, but not to force dissenting minorities to affirm those or anyone else's beliefs in word or deed. That would involve "compelled speech," which is generally unconstitutional.

Phillips argues that the Colorado Civil Rights Commission has compelled his artistic expression (which counts as "speech" under our law) by forcing him to create same-sex wedding cakes if he wants to stay in the wedding business. To be clear, Phillips serves all patrons, whatever their religion or sexual orientation. But he won't design cakes celebrating themes that go against his religious beliefs as an evangelical Christian. So he takes a hit to his business to avoid designing cakes for Halloween parties, which are big sellers, as well as lewd bachelor parties, divorce parties, and much else. And he won't design cakes that celebrate same-sex weddings since he believes that only a man and woman can form a true marriage.

It's bad public policy to compel them, but there's an obvious difference here. The state can and does compel education and car licensing.  It does not compel anyone--outside prison--to bake.
Posted by at November 30, 2017 5:14 AM