proves of ) isn’t a speech compulsion.
Now, requiring a baker to make a cake containing pro–gay
marriage text or pro–gay marriage symbolic expression—pic-
tures of two grooms or a rainbow motif, say—would indeed be
compelled speech. But in the Masterpiece Cakeshop case, the
baker apparently refused to make any cake for a same-sex wed-
ding, without even discussing the design. That’s a refusal to do,
not a refusal to speak.
Nor is it enough that wedding cakes are supposed to be aes-
thetically pleasing. Hairstyles are similarly aesthetic, and can
convey links to particular attitudes. But a hairdresser who, for
instance, refuses to do cornrows for a white customer or refuses
to cut a woman’s hair in what he sees as an improperly masculine
style can’t claim a First Amendment freedom from compelled
speech. For every Masterpiece Cakeshop there is a Masterpiece
Hair and a Masterpiece M.D. plastic surgeon—and even a Mas-
terpiece Limousine and a Masterpiece Plumbing (all real busi-
ness names). The Free Speech Clause does not protect them all.
To be sure, if you believe religious objectors should be pre-
sumptively exempted from generally applicable laws—for
instance, under the Free Exercise Clause—you might think this
covers bakers who think it’s sinful to prepare cakes for same-
sex weddings. (That would then raise difficult questions about
when the presumption of religious exemption can be rebutted.)
But the Supreme Court has held that the Free Exercise Clause
doesn’t secure such a right; that provision generally protects
only against deliberate religious discrimination by the govern-
ment. (The Court in the Masterpiece Cakeshop case found evi-
dence of such discrimination in the Colorado proceedings, but
that won’t be so in many other similar cases.) The federal Reli-
gious Freedom Restoration Act (RFRA), which authorizes
some such exemptions, doesn’t apply to state laws. And
Colorado doesn’t have its own RFRA.
Our Constitution isn’t a libertarian
document. It is a document that
creates a charter for democratic
government, with some protection
for specific individual liberties, but
generally in specific, identified zones.
The freedom to speak—and not to speak—
are included. But those freedoms don’t cover
everything, and they don’t cover cake making.
MANUEL S. KLAUSNER, a Los Angeles lawyer and co-founder of Reason
Foundation, heads Reason’s amicus brief program and served two terms as
a member of the C alifornia State Advisor y Commit tee to the U. S. Commission
on Civil Right s.
EU G EN E VO LO K H is the Gar y T. Schwar tz Profe ssor of L aw at the U CL A School
of Law and a co-founder of the Volokh Conspiracy blog, now hosted at Reason.
36 OCTOBER 2018
PROPOSITION:
Be an Anarchist,
Not a Minarchist