A Second Chance to Get It Right: 303 Creative at the Supreme Court
It is not often that an issue comes before the Supreme Court twice within a space of four years, but that is exactly what has occurred in the same-sex marriage vendor cases. The first opportunity was in the Masterpiece Cakeshop litigation. The main argument pressed in that case was that making wedding cakes was an “artistic” effort that rose to the level of speech, such that the baker could not be compelled to make a cake for a same-sex wedding, despite the state’s public accommodations law forbidding discrimination against a person’s sexual orientation. The Supreme Court avoided answering that question by ruling that the state officials had shown prejudice against the baker’s religious belief that same-sex marriage was unethical, and so hadn’t given him a fair hearing.
The Supreme Court has now agreed to hear a similar case, this time involving a vendor who wishes to design websites for opposite-sex, but not same-sex, marriages. While she, too, bases her refusal to serve such marriages on her religious beliefs, the Court has limited the issue it will consider to whether her free speech rights are being violated. This case much more clearly presents a vendor who utilizes her own speech in preparing her product than does a baker, but, as was well demonstrated during the oral argument in Masterpiece Cakeshop, focusing on the vendor’s own speech presents some problems.
During the argument, the baker’s counsel was pummeled with hypotheticals as to which vendors were “artistic” enough to deserve protection for their own artistic endeavors: “A flower arranger?” “Yes” (after all, such a case, Arlene’s Flowers, was then pending before the Court). “A hairdresser?” “No.” “A makeup artist?” “No.” “Why not? She calls herself an ‘artist’.” (Laughter.) “A chef?” “No.” “So the chef who prepares the meal gets no protection but the baker who prepares the dessert does?” “Yes; the chef isn’t using speech.” (See transcript of oral argument at 12-14, Dec. 5, 2017, found on the Supreme Court’s web site, slightly revised here.)
Fine lines are hard to draw. But there is another argument to be made that avoids both this problem and a more important one, i.e., focusing on the vendor’s own speech leaves out in the cold many vendors who have exactly the same, sincere objection to servicing a same-sex marriage ceremony as do the baker and the website designer. This includes all those marriage vendors the justices asked about during the Masterpiece argument and also those, for example, who provide tables, awnings, and facilities. The legal theory that protects all vendors is this: the relevant speech is not that of the vendor, but that of the same-sex marriage participants. It doesn’t matter if the vendor supplies chairs or a venue or a website design; she is being asked to associate and foster a message she sincerely finds objectionable. To make her service that message by associating with it is compelled speech, whether or not her service is itself speech.
The Supreme Court’s recent decision in Janus,a case involving forced union dues, provides the proper analysis. There, the objecting employee did not join the union and did not agree with many of the union’s public policy positions, but was required by law to associate with the union by paying prorated dues. The employee did not express any speech of his own, but, despite that fact, the Court held that his free speech rights were violated by his being forced to pay for union messages to which he objected. The Court equated such a requirement with compelled speech in violation of the Free Speech Clause and noted that the “right to eschew association for expressive purposes is likewise protected.” It summarized that “[c]ompelling individuals to mouth support for views they find objectionable” on “controversial public issues,” even indirectly by forced association, should be “universally condemned.”
These truisms apply with full force in the same-sex marriage situation. If they are applied in 303 Creative, as the National Legal Foundation and a coalition of other organizations will argue they should in a friend-of-the-Court brief, they will protect all vendors of faith.
Let’s hope the Court understands that this broader approach is the best one. The Free Speech Clause prevents enforcement of public accommodation laws against all vendors who sincerely object to associating with the message of a same-sex marriage by supporting it with their goods and services, no matter how “artistic” they are.