Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at a potential Supreme Court test case about religious beliefs, same-sex marriage and a Colorado bakeshop.
THE STATEMENT AT ISSUE:
“Jack Phillips is an artist. He has created elaborate custom cakes for over two decades. His cakes commemorate the important celebratory themes of birthday parties, anniversaries, graduations, and weddings. His faith teaches him to serve and love everyone and he does. It also compels him to use his artistic talents to promote only messages that align with his religious beliefs. Thus, he declines…to create cakes celebrating...messages that his faith prohibits, such as…any marriage not between one man and one woman. But Colorado has ordered him to create custom wedding cakes celebrating same-sex wedding ceremonies. This mandate violates one of the Free Speech Clause’s essential rules: the government cannot compel a private citizen to utter what is not in his mind.”
– Excerpt from appeal papers filed in the Supreme Court on July 22 for a Lakewood, Calif., bakery operator, challenging a ruling by Colorado state officials that the bakeshop illegally refused to provide a wedding cake for a same-sex couple. The case is Masterpiece Cakeshop v. Colorado Civil Rights Commission.
WE CHECKED THE CONSTITUTION, AND…
No one could doubt that the First Amendment would forbid, for example, a demand by the state of Pennsylvania that the Cathedral Basilica of Saints Peter and Paul in downtown Philadelphia remove the religious-themed stained glass windows from its magnificent dome. Religious art is protected constitutionally, both as an utterance of belief and as a form of expressive art.
The Supreme Court long ago began bringing under the First Amendment other forms of expressive activity beyond pure speech and pure writing. A classic modern example came in back-to-back decisions in 1989 and 1990, providing constitutional protection for burning the American flag, when that was done to send a message of political protest.
In other words, if the real reason behind a form of conduct or behavior is to send a message, that has a fair chance of being treated as a form of “symbolic speech” even if not a word is uttered and not a sign is displayed. There are limits, of course: one gets no First Amendment protection, for example, for shouting “Fire!” in a crowded theater, whatever the motive; the safety risk is too great to be tolerated.
The Supreme Court is now being asked to examine what the First Amendment says, or does not say, about whether other forms of creative expression – motivated by a person’s religious belief – qualify for First Amendment protection. A case that has just arrived at the court is another in a continuing series of sequels to the court’s decision last year that same-sex couples have an equal right to marry, based on the Constitution’s Fourteenth Amendment.
While efforts to resist the full implementation of the marriage ruling in Obergefell v. Hodges are gradually coming to an end, that is true mainly in the context of actual access to marriage itself or to the benefits of marriage, such as a right to adopt children. There remains a quite widespread resistance to offering commercial services for gay and lesbian couples who marry, when the resistance is by a person of faith who does so because of religious opposition to same-sex marriage.
Lower courts are now working on cases involving such resistance; a major case, for example, has grown out of a strongly worded new state law in Mississippi providing broad legal protection for refusing – on the basis of faith – to serve same-sex couples commercially, and otherwise.
The Supreme Court has already had experience with one such case. Two years ago, the Justices – without comment – denied review of the case of Elane Photography v. Willock. That was a case from New Mexico in which a commercial photographer was ruled to have acted illegally in denying to take pictures for a same-sex couple’s wedding.
But the lawyers for the photographer in that case did not base their appeal to the Supreme Court on their client’s religious beliefs, but rather on the claim that she was being forced to engage in the creative expression of taking photos in violation of her First Amendment rights of free expression. The court appeared to have no interest in the issue, framed that way, leaving New Mexico free to enforce equal access to commercial opportunity for same-sex couples, under a state’s “public accommodations” law.
That omission of a faith-based argument, however, is not a feature of the new case that is now awaiting the Justices’ attention. Involving a commercial bakery in Lakewood, Colorado, that case seeks to make a direct test of whether the First Amendment’s protection for religious expression reaches a wedding cake, put together by a person who conducts his business according to religious principles.
Colorado, like New Mexico, has a state public accommodations law that creates equal access to such places of business or other activity for persons based on their sexual orientation. That law was used against the operator of the Masterpiece Cakeshop in Lakewood.
In taking the baker’s case on to the Supreme Court, his lawyers raised this specific question: “Whether applying Colorado’s public accommodations law to compel [Jack] Phillips to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.”
The appeal opens with a simple sentence: “Jack Phillips is a cake artist.” That seeks, right up-front, to draw the Justices to the view that this is a case about the symbolic expression of faith through the work of one’s hands and design talents. A wedding cake, in short, is a form of visual speech. And, to Jack Phillips, apparently, it serves the same expressive purpose as does a cathedral’s inspired stained-glass windows. Will the Justices view it the same way?
The court, now in the midst of its summer recess, won’t act on the case until sometime this fall. This may be as good a test case as there is on its chosen issue.
