Friday, October 19, 2018
Editorials

Another voice: Balancing First Amendment rights, equal treatment

The encounter among David Mullins, Charlie Craig and Jack Phillips in a suburban Denver bakery lasted less than a minute. But it has led to years of litigation, culminating in a date at the Supreme Court, where today the justices will hear one of the highest-profile and most emotionally fraught cases of the current term.

Phillips is the proprietor of Masterpiece Cakeshop, where he makes elaborate wedding cakes and other baked goods. In 2012, Craig and Mullins went into the shop hoping to order a cake for their wedding. They had brought along Craig’s mother and a binder of designs they were considering. Phillips refused to serve them. Same-sex marriage violates his religious faith, he explained, and baking a cake would represent his endorsement of such a ceremony. (Phillips also closes his store on Sundays and refuses to produce cakes with profane messages, or those that celebrate Halloween.)

The couple left in shock. They sued Phillips under a state law that bars businesses open to the public from discriminating on the basis of sexual orientation, among other things, and they won. Phillips appealed on the ground that the law infringed his First Amendment rights to free speech and the free exercise of his religion.

These are among the most revered of our constitutional rights. But this case is not really about them; it’s about discrimination in the public square. Put simply, you can’t offer business services to the general public and then pick and choose your customers because of who they are.

Phillips makes a good case that he is an artist. So might many others who sell the fruits of their labor to those celebrating a wedding. But that doesn’t give any of them the right to refuse service to people protected under an anti-discrimination law. If the couple had asked Phillips to write a message on their cake endorsing same-sex marriage and he had been punished for refusing, he would have a more plausible First Amendment claim, since he wouldn’t write that for anyone. But Colorado’s law doesn’t compel Phillips, or any proprietor, to say anything they don’t want to say, or to endorse any specific message. It requires only that they treat all customers equally.

Some free-speech advocates argue that this case is simply a matter of deciding which sorts of expression merit First Amendment protection and which do not. Cake bakers may be a close call, but what about photographers? Florists? Caterers? Calligraphers? In fact, cases like these have been brought around the country. If the justices rule for Phillips, they will be hard pressed to find a clear limiting principle. And that would render public accommodations laws like Colorado’s effectively meaningless.

Unfortunately, the Civil Rights Act does not yet protect gays and lesbians, so they must depend on state laws to guarantee equal treatment. Only 21 states and the District of Columbia have public accommodations laws like Colorado’s, which means that in more than half the country, Mullins and Craig would have no recourse if a business refused to serve them because they are gay.

Today’s case will almost surely be decided by Justice Anthony Kennedy, the court’s perennial swing vote. This time, the split he faces is not only among the other eight justices but also within himself, as the author of landmark decisions supporting both gay rights and free speech. Kennedy can conclude that Phillips is a reasonable and sincere person, and still decide that businesses may not disregard anti-discrimination laws by cloaking themselves in the First Amendment.

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