It’s Not Freedom if You Can’t Exercise It, Part 4   Leave a comment

Clarence Thomas concurred with the majority opinion, writing separately on Jack Phillips’ free speech claim. I like Thomas’ opinions because they are very clearly worded and he doesn’t devolve into legalese.

He begins by agreeing that the Colorado Civil Rights Commission violated Jack Phillips’ right to freely exercise his religion when it treated his religious objections differently from other bakers’ secular objections in a similar case (Jack), showing overt hostility to Phillips’ religion.

Image result for image of wedding cakeThe SCOTUS did not address the free-speech claim because there were uncertainties in the record. Phillips claims he refused to create a custom wedding case to celebrate their wedding case because he would have refused to bake a custom wedding cake for any same-sex couple. The customers asserted that he refused to even sell them a premade cake, which he denies. (Note to self – when controversy comes your way, hit record on your cell phone so there’s no question of what was said). The Colorado Court of Appeals resolved that factual dispute in Phillips’ favor, describing his conduct as a refusal to ‘design and create a cake to celebrate a same-sex wedding.” The Commission’s order required Phillips to sell “any product he would sell to heterosexual couples” including custom wedding cakes, yet even after that description, the Court of Appeals concluded that Phillips’ conduct was not expressive and was not protected speech, reasoning that an outside observer would conclude that Phillips was merely complying with Colorado’s public-accommodations law, not expressing a message, and that Phillips could post a disclaimer to that effect … flouting “bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak. It should not pass without comment.”

The 1st Amendment is applicable to the States through the 14th Amendment and it prohibits that abridgment of “freedom of speech.” In Hurley it was ruled that public-accommodation laws do not target speech, but instead prohibit the act of discrimination against individuals in the provision of publicly available goods, privileges and services.” But sometimes protected speech is impacted and then the 1st Amendment has had primacy. In Hurley, the Court unanimously held that the law requiring the sponsor of a St. Patrick’s Day parade to include a parade unit of gay, lesbian and bisexual Irish Americans violated the sponsors right to free speech because parades are a form of expression and application of the public-accommodations law altered the expressive content of the parade by forcing the sponsor to add a new unit, suggesting that the sponsor agreed that people of gay, lesbian or bisexual orientation have as much claim to unqualified social acceptance as heterosexuals and would tend to imply that their participation “merits celebration.” The SCOTUS rejected the notion that governments can mandate “thoughts or statements acceptable to some groups or indeed all people” as the “antithesis” of free speech. “The Constitution limits the government’s authority to restrict or compel ‘expressive conduct’. The ability to choose what not to say is a primary manifestation of free speech.

Philliips considers himself a cake artist, symbolized by the logo for Masterpiece Cakeshop being a painter’s palate with a paintbrush and baker’s whisk. He designs the cakes, he sits down with each couple to consult on the design. He delivers the cake and sometimes stays and interacts with the guests at the wedding. Guests often recognize his work and seek out his bakery afterward. To him, a wedding cake inherently communicates that a wedding has occurred, a marriage has begun, and the couple should be celebrated. But it’s not just Phillips who believes that. Society has viewed wedding cakes by the symbols since before the American Civil War.

“Accordingly, 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.”

Colorado’s public-accommodations law would alter the expressive content of Phillips’ message. Forcing Phillips to make custom wedding cakes for same-sex marries requires him to, at the very least, acknowledge that same-sex weddings are “weddings” and suggest that they should be celebrated – “the precise message he believes his faith forbids.”

Thomas gave due consideration to prior rulings by the Supreme Court showing that the government is not permitted to compel speech or “expressive conduct”. He also addressed the argument that Colorado’s law allowed it to compel Phillips’ speech to prevent the same-sex couple from being denigrated, made to feel inferior or subjected to humiliation, frustration or embarrassment.

“These justifications are completely foreign to our free-speech jurisprudence. 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.” Again, Thomas gives a lot of consideration to prior SCOTUS rulings.

He also points out what Phillips actually said to the respondents in this case. “I will make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same sex weddings.” And, then a black justice points out the Court allows racist, demeaning and threatening speech toward blacks. Ruling that the Constitution protects same-sex marriage does not immediately require that those who express a different view are not protected in expressing those views.

Thomas engages in a little “I told you so”, noting that he warned during Obergefell that the Court’s decision would “inevitably come into conflict with religious liberty as individuals are confronted with demands to participate in and endorse civil marriages between same-sex couples.” He predicts further conflict unless the freedom of speech principle is upheld going forward.

Part 5

 

 

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