blehblah wrote:Back to religion - do whatever you want; I'm totally fine with it, so long as it doesn't infringe on what I consider more important rights. Refuse to sell cake for a gay marriage? Fill yer boots. You're not my kind of paddy-cake maker, but everyone has that one crazy uncle. Put a sign in your window saying, "Help wanted - gays need not apply," and you're pushing my buttons. Marry-off teens to elderly men? Straight to jail with ya.
This kind of analysis doesn't quite fit with American law, mostly because of the state action doctrine. There isn't a Constitutional right against private discrimination. For the most part, the Constitution only protects you from governmental discrimination.
Civil Rights Cases,
109 U.S. 3 (1883);
United States v. Morrison,
529 U.S. 598 (2000).
So, if Colorado's civil rights law had infringed on Phillips' free speech rights, the Court wouldn't balance that against any equal protection right on the part of the gay couple. Instead the Court would have to determine whether protecting gay couples from discrimination constituted a compelling governmental interest, and whether the civil rights law was narrowly tailored to further that interest. Thomas' concurrence suggests that he thinks discrimination protection can never justify infringements on freedom of speech, although I might be misunderstanding his point.
Can someone, based on the first amendment, refuse to express something? I'm thinking of the example of writing something on the cake (or, in any other way, expressing something in the creation of the product)? If, let's say, the couple asked for those little figurines on top of the cake, would that count? I suppose even if it does, he could sell them the generic cake, but refuse the, arguably, expressive flourish (or rainbows, following Carrie's example).
There is definitely a right to refuse to speak. The government can't, for example, force you to say the Pledge of Allegiance at school.
West Virginia Board of Education v. Barnette,
319 U.S. 624 (1943).
The way I understand this case, though (and I think the way Kagan understands it as well) is that Phillips wasn't being compelled to speak. Although a baker has a right to control the content of his cakes, he doesn't have a first amendment right to sell them to certain people for certain uses and not for others. There might be expressive value in creating a wedding cake; there isn't expressive value in selling that wedding cake to be used in a gay wedding.