Supreme Court in the case Masterpiece Cakeshop v. Colorado
Civil Rights Commission. Like most libertarians, we believe that
vendors should not be required by law to design and sell custom
products for same-sex weddings to which they have conscience-
based objections.
Reason has favored gay civil unions since the 1970s, long
before they received widespread support. But we’ve always
insisted that the law respect views held by minorities, and as
libertarians we oppose using coercion to compel conformity in
the private sector.
Support for same-sex marriage in the U.S. is at its highest
point since Pew Research Center began polling on this issue
in 2001. As of 2017, more than six in 10 Americans supported
same-sex marriage; just 32 percent opposed it. Today, the small
number of business owners who object to providing services for
gay weddings are the minority whose rights need protecting.
In June, the Supreme Court ruled 7–2 in favor of Masterpiece
Cakeshop’s Jack Phillips based on the Colorado Civil Rights
Commission’s apparent hostility to his religious views. In the
majority opinion, Justice Anthony Kennedy noted that the com-
mission had permitted at least three other bakers to refuse to
provide cakes expressing sentiments opposed to same-sex mar-
riage, even as it threw the book at Phillips for not wanting to use
his artistry to endorse a same-sex wedding.
Yet the decision failed to resolve this issue once and for all in
favor of business owners with moral reservations. It left open the
possibility that laws compelling bakers and florists to partici-
pate in marriage celebrations against their will could be upheld,
as long as the state or city applied the regulation even-handedly.
No one could credibly argue that gay marriage in Colorado
is threatened by Phillips’ religious convictions. But liberty is
threatened, both by the heavy-handed conduct of the Colo-
rado Civil Rights Commission and by Justice Kennedy’s short-
sighted opinion.
If and when this question returns to the Supreme Court, the
justices should invoke the twin First Amendment protections of
expressive speech and religious freedom to convincingly sup-
port tolerance for unpopular views in a pluralistic society.
NEGATIVE:
Cake Baking Simply
Is Not Speech
EUGENE VOLOKH
THE FREE SPEECH Clause, the Supreme Court has long held, pro-
tects the freedom not to speak as well as the freedom to speak.
And this freedom not to speak must include the freedom not to
create speech, and not to participate in others’ speech.
A freelance writer shouldn’t be forced to write press releases
for the Church of Scientology, even if he’s willing to work for
other religious groups. A musician shouldn’t be forced to play
at Republican-themed events, even if he plays at other politi-
cal events, and even in a city (such as Seattle or D.C.) that bans
businesses from discriminating based on political affiliation.
Likewise, a photographer shouldn’t be forced to create photo-
graphs celebrating a same-sex wedding, and a wedding singer
shouldn’t be forced to sing at such a celebration.
But this right must have its limits. It is a free speech clause,
not a freedom of action clause, and courts thus must distinguish
speech (and a limited zone of symbolic expression that is basi-
cally tantamount to speech) from other behavior.
The Free Speech Clause doesn’t give a limo driver a legal right
not to drive a couple from their same-sex wedding. It doesn’t
give a chef a right not to serve certain people at his restaurant.
Subway calls its sandwich makers “sandwich artists,” but that
doesn’t give it a Free Speech Clause right to discriminate among
would-be patrons of such arts. The same is true for bakers, even
ones who create beautiful cakes for use at weddings. It is gener-
ally constitutional—whether or not wise or just—for the law to
compel behavior, and only a small subset of such compulsions
violates freedom of speech.
Courts have recognized the need to distinguish speech from
conduct when it comes to speech restrictions, and the Supreme
Court has rejected “the view that an apparently limitless vari-
ety of conduct can be labeled ‘speech’ whenever the person
engaging in the conduct intends thereby to express an idea.” A
city would violate the First Amendment by, say, restricting the
number of newspapers or freelance writers that may operate
there. But a city may limit the number of butchers or cab driv-
ers—unwise as such regulations usually are—because those
activities aren’t treated as speech.
The same is true for restaurants or bakeries, even ones that
create beautiful dishes or beautiful cakes. And if a restriction
on the ability to bake cakes isn’t a speech restriction, then a
requirement to bake cakes (even for ceremonies one disap-REASON 35“A voluntary, market-
oriented approach is the
best way to reconcile
competing interests.”