1AP’s 3 Things to Know—Masterpiece Cakeshop and Free Expression

On December 5th, the Supreme Court will hear arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission. There are two major First Amendment issues in this case–free speech and expression and religious freedom. We’ve already written about the religious freedom case for why Jack Phillips should win here.

Here are 3 Things to Know about the free expression argument for why Jack Phillips should win his case:

  1. Cake design and preparation is an art, and artists are protected by the First Amendment. Custom cakes are unique works of art, designed and crafted for each client. Unlike mass-produced baked goods, custom cakes are created to be enjoyed by the eyes as much as the stomach. Wedding cakes take on a particular significance, as they are often the focal point of a wedding reception. The fact that Jack Phillips creates with icing and fondant rather than quill or brush does nothing to diminish the creativity and skill that go into his cakes. Artists of all kinds have won before the Supreme Court, and free speech protections extend far beyond the written word.
  2. Even if cakes are not expressive (they are), weddings are clearly expressive events, meaning the government cannot force participation in them. The core message of a wedding is the couple’s commitment to each other and their relationship. The Seventh Circuit stated that “marriage confers respectability on a sexual relationship.” Those who participate in such events appear to give their implicit blessing to the expressed message. The government cannot compel participation in an expressive event without running afoul of the First Amendment.
  3. The Supreme Court has previously held that compelling speech is just as unconstitutional as restricting it. When the government forces people to speak, it’s known as compelled speech. Like all speech, compelled conduct is enveloped within compelled speech. The threshold for government to restrict or compel speech is extremely high. The Court has broadly referred to these complementary protections as “individual freedom of mind.” For the state of Colorado to compel Jack Phillips to create a cake, it must surpass the highest level of constitutional scrutiny.

In the Wooley case, the Supreme Court held that drivers who objected to the saying on their state’s license plates could not be forced, even passively, to convey someone else’s (the state’s) message with which they disagreed. By comparison, forcing Jack Phillips to create expressive artwork for an expressive ceremony is hardly passive. Furthermore, the state’s interest in regulating religious ceremonies is far less compelling than the hardly-compelling interest of issuing uniform license plates. Based on past cases, Jack Phillips should win on First Amendment grounds.

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