A day before SCOTUS oral arguments in the gay wedding cake case, Robert P. George and Sherif Girgis argue make the case that Jack Phillips, the Masterpiece Cakeshop baker who refused to make a cake for a same-sex wedding, ought to have that constitutional right. Excerpts:
Our point is not that forcing people to sell a product or service for an event always compels them to endorse the event. It’s that forcing them to create speech celebrating the event does. And it’s well-established that First Amendment “speech” includes creative work (“artistic speech”) ranging from paintings to video games.
Unlike folding chairs or restaurant service, custom wedding cakes are full-fledged speech under the First Amendment. Creating them cannot be conveniently classified as “conduct, not expression” to rationalize state coercion.
After all, the aesthetic purpose of wedding cakes — combined with the range and complexity of their possible designs — makes them just as capable of bearing expressive content as other artistic speech. Mr. Phillips’s cakes are admired precisely for their aesthetic qualities, which reflect his ideas and sensibilities. A plaster sculpture of the same size and look would without question be protected. That wedding cakes are edible is utterly beside the point. Their main purpose isn’t to sate hunger or even please the palate; it is aesthetic and expressive. They figure at receptions as a centerpiece and then part of the live program, much like a prop in a play. And no one denies that forcing artists to design props for plays promoting a state-imposed message would be unconstitutional.
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.
Note that this argument wouldn’t cover all requirements to make artistic items. The law may force photographers to do photo portraits for Latinos as well as whites since that doesn’t yet force them to create art bearing an idea they reject, which is all the compelled-speech doctrine forbids. But custom wedding cakes carry a message specific to each wedding: This is a marriage.
George and Girgis point out that the State of Colorado, which sanctioned Phillips, on three different occasions supported the right of pro-gay bakers to refuse Christian requests to make cakes expressing opposition to same-sex marriage. The state has a problem here. I hope SCOTUS fixes it. Read the entire column.