The Supreme Court in Masterpiece Cakeshop struck down Colorado’s punishment of a baker who refused to make a cake for a same-sex marriage (SSM). It did so, though, on different grounds than were principally presented.
The case was principally argued on the basis that, because decorating a cake was “artistic” expression, it was “speech” under the First Amendment and a cake artist could not be compelled to articulate a message with which he disagreed. This generated much questioning at oral argument about whether, for example, a make-up “artist” also got such protection. However, the decision as written by Justice Kennedy did not turn on such niceties. Instead, he noted that some of the Colorado decision makers had expressed open hostility to the religious views of the baker while accommodating other bakers who refused to make cakes with anti-SSM messages, showing an anti-religion bias not permitted under the First Amendment. At the same time, Justice Kennedy and four other justices (Kagan, Breyer, Ginsberg, and Sotomayor) made it fairly clear that, but for the anti-religion bias, the baker may well have lost on the “artistic speech” argument.
This issue of whether wedding vendors may refuse to service SSM events is unlikely to go away, and, indeed, several similar cases are in the pipeline to reach the Supreme Court. When they arise, it is important that the issue be presented in the proper way. Focusing on whether or not the wedding vendor is engaged in “artistic speech” obviously leaves many wedding vendors, such as facility providers, out in the cold, even though their objections to facilitating SSM is just as strong and just as religiously rooted as those of wedding cake bakers. Consider whether a black restaurateur must cater a Ku Klux Klan meeting because the civil rights laws prohibit racial discrimination. To take the facts of another decision just issued by the Supreme Court, if it is unconstitutional to require an employee to pay dues to a union that espouses political views with which the employee disagrees (and thus facilitate that expression of another to which he objects), is it not just as unconstitutional to force any wedding vendor to use his time, talents, and goods to facilitate a ceremony to which he has moral objection?
As NLF argued in its amicus brief filed with the Supreme Court in Masterpiece Cakeshop, the proper focus is not on the speech of the wedding vendor, but the speech, both express and implicit, in a SSM ceremony itself. No individual should be forced to facilitate a religious (or faux-religious) ceremony with which he does not agree. This violates his freedoms of speech, assembly, and religion. And it matters not what service the individual provides and whether it is “artistic.”
The government, while supporting the baker in the Supreme Court, was worried about opening a loophole in the civil rights acts for anyone who spouts a religious reason for discriminating. Indeed, the Supreme Court decades ago refused to allow whites to refuse to serve blacks at diners and motels because they raised religious objections to integration. But the key distinction here is not whether the vendor is himself engaging in “artistic” expression. It is that the wedding vendors are being asked to participate in and facilitate a religious ceremony to which they have religious objection. Eating a meal at a diner and sleeping in a room at a motel are not religious ceremonies.
The baker in Masterpiece Cakeshop did not refuse to service all homosexual patrons. He did so regularly. He simply refused to participate in or to facilitate a ceremony and its message to which he had religious objection. Whether his services are “artistic” is besides the point, and, hopefully, the Supreme Court when it does eventually confront this issue will understand that.
