By Thomas Mitchell
It has long been agreed that the First Amendment right to free speech includes the right to not be compelled to speak, but this past week the U.S. Supreme Court appeared to skirt this simple premise, though it ruled in favor of a Colorado cake baker who refused in 2012 to create a wedding cake for a same-sex couple for a different reason.
The court’s 7-2 ruling in favor of Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colo., instead hinged on the fact the Colorado Civil Rights Commission was inconsistent in its rulings relating to issues of the First Amendment’s guarantee of free exercise of religion.
Writing for the majority, Justice Anthony Kennedy noted that on at least three occasions the state Civil Rights Commission held that bakers who refused to create cakes with images that conveyed disapproval of same-sex marriage did so lawfully.
“The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection,” Kennedy wrote. “The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.”
Kennedy added that the commission’s disparate treatment of Phillips violated the state’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint.
“The Free Exercise Clause bars even ‘subtle departures from neutrality’ on matters of religion. … Here, that means the Commission was obliged under the Free Exercise Clause to proceed in a manner neutral toward and tolerant of Phillips’ religious beliefs,” Kennedy said.
As usual, Justice Clarence Thomas countenanced no tolerance for such nuanced, too-narrow rulings and tackled the matter head on in a concurrence that was joined by Justice Neil Gorsuch. Thomas said Phillips rightly prevailed on his free exercise claim, but the court failed to address his free speech claim.
Thomas wrote that the appellate court rationalized that Phillips was defying Colorado’s public-accommodations law and not acting as a speaker. “This reasoning flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak,” he concluded.
Thomas said public-accommodation laws may regulate conduct, but not expression of ideas, citing a case in which the high court ruled unanimously that the sponsor of a St. Patrick’s Day parade could not be forced to include a group of gay, lesbian, and bisexual Irish-Americans, because that violated the sponsor’s right to free speech.
“While this Court acknowledged that the unit’s exclusion might have been ‘misguided, or even hurtful” … it rejected the notion that governments can mandate ‘thoughts and statements acceptable to some groups or, indeed, all people’ as the ‘antithesis’ of free speech …” Thomas explained.
He further noted that the court has held that communication of ideas can be conveyed by symbolism as well as words — such as nude dancing, burning the American flag, flying a flag upside-down, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the flag and flying a plain red flag.
Thomas said that the court’s previous ruling that the Constitution protects the right to same-sex marriage does not mean those who disagree are not entitled to express that opinion.
“Because the Court’s decision vindicates Phillips’ right to free exercise, it seems that religious liberty has lived to fight another day,” Justice Thomas concluded. “But, in future cases, the freedom of speech could be essential to preventing (the right to same-sex marriage) from being used to ‘stamp out every vestige of dissent’ and ‘vilify Americans who are unwilling to assent to the new orthodoxy.’”
There are cases waiting in the wings that might afford an opportunity to fully recognize freedom of speech when it comes to whether a business may be compelled to offer its services for same-sex weddings — these include a florist in Washington state, a web designer in Colorado and a calligrapher in Arizona.
Hopefully, the court will be more forthright and specific in favor of free speech in on of those or some other case.