To my wife’s occasional mild irritation, I always insist on waiting until the wedding cake has been served before I leave a reception, no matter how late the hour or how long the journey home.
To me, and to anybody who has ever ordered or paid for a wedding cake, this pastry is much more than a dessert. To share the wedding cake is to share the wish for the wedded couple to enjoy a sweet life ahead. Although I have limited baking skills, I am sure that creating such a cake is an artistic expression of that wish. Love and marriage are joys to be shared and celebrated in all their forms, including confectionary.
While every religious faith is entitled to its own views on same-sex marriage, I argued decades ago that the government has no business injecting itself into those views and that, from a civil standpoint, the institution of marriage belongs to everybody. I would personally choose not to patronize a baker, or a florist, or a photographer, who refuses to extend his or her services to couples of whose relationship they disapprove, especially gay and lesbian couples who have had to fight so hard and so long to gain the legal recognition of their marriages that the rest of us take for granted. But although I may abhor the narrow-mindedness I see in the decisions of these creators to withhold their services from part of the public, I cannot refuse to recognize their status as creators.
A wedding cake or a custom floral arrangement is not just another commodity; it is an artistic expression. Under the First Amendment, such expression can be neither outlawed nor commanded. In the case of a photographer, the situation is even clearer, because the image he or she creates is recognized under copyright law as belonging to the artist from inception. In most cases, you do not own your wedding photographs; you merely possess or share them under license.
These two concepts – that civil marriage is for everyone and that creators have a right to express, or refuse to express, any particular sentiment – represent the heart of the conflict in a case that will make its way to the Supreme Court next term.
Jack Phillips, a baker in Colorado, refused to make a wedding cake for a couple because the partners were both men. A state court had ruled that Phillips violated an anti-discrimination law that requires businesses in Colorado to serve customers without regard to a variety of factors, including sexual orientation.
Phillips countered that his cakes are a means of expression, and as such deserve First Amendment protection. He told the men at the time, and has repeated since, that he would provide his services to them for any other occasion, but he would not participate in a same-sex ceremony. In a Supreme Court brief, his lawyers pointed out that Phillips also refuses to make cakes that contain alcohol or that celebrate Halloween.
Phillips refused to sell a wedding cake to the couple, David Mullins and Charlie Craig, in 2012. (While the men could not legally wed in the state at the time, they planned to marry in Massachusetts but hold their reception in Colorado.) Mullins and Craig filed a complaint with the state’s Civil Rights Commission a few months later, and the commission brought a case against Philips in 2013. The American Civil Liberties Union participated from the case’s inception, arguing that Colorado’s interest in eradicating discrimination outweighed Phillips’ religious objections. “It is no answer to say that Mullins and Craig could shop somewhere else for their wedding cake, just as it was no answer in 1966 to say that African-American customers could eat at another restaurant,” the ACLU suggested.
Is there a difference between serving a grilled cheese sandwich at a Woolworth’s lunch counter and preparing a one-of-a-kind creation in honor of a couple’s lifelong vows? The civil liberties group seems to be having a lot of trouble making up its mind.
Presumably, had the operators of a segregated Southern lunch counter raised First Amendment concerns during the civil rights movement, the ACLU would have replied that there was nothing expressive about a typical cafeteria apart from the words written on its menu. Most people today would probably agree, although I can’t speak for the diehard foodies.
But in between the lunch counter sit-ins and the drive for marriage equality, the ACLU took a very different position about nonverbal messaging when it represented Gregory Lee Johnson in a lower court appeal after Johnson burned an American flag at the 1984 Republican National Convention. The ACLU also filed an amicus brief supporting Johnson’s Supreme Court case. As the ACLU’s website observes, “It is no accident that our Bill of Rights begins with the First Amendment, for all of our other liberties flow from our rights to free speech, free press, free exercise of religion, freedom of assembly, and the right to criticize our government.”
The ACLU’s support for Mullins and Craig in their case against the reluctant baker says much more about the changes in the ACLU itself over the years than about changes in the law or in society. Far from being an advocate of freedom of expression, even when exercised in a hurtful way, the ACLU today is taking on the role of advocate of limits on unfavorable communicative conduct. I am personally sympathetic to those who decry Phillips’ decision, but that does not erase the fact that we cannot force individuals to express sentiments with which they disagree.
Private clubs have a legally established First Amendment right to discriminate in any way they want. Many did in the past; very few of any consequence do so today. Most of us would be ashamed to sign up for a club that barred others for their race, their faith, their gender or their sexual orientation. There is no need to ride roughshod over precious constitutional freedoms to effect social change. We just need to speak up.
In 2015, the Supreme Court made an admirable (and overdue) decision to extend marriage rights to same-sex couples across the country. It also recently affirmed that even disparaging speech enjoys First Amendment protection. The Supreme Court did the right thing when it recognized the right of gay couples to wed. My guess and expectation is that it will also recognize the rights of others to choose not to artistically celebrate such unions.