Why Jack Phillips of Masterpiece Cakeshop Should Win His Supreme Court Case

Sherif Girgis has an excellent article on “The Christian Baker’s Unanswered Legal Argument: Why the Strongest Objections Fail.” He writes clearly and simply, backing up his arguments with precedents set by previous cases before the Supreme Court. It’s a long read, but worth every minute. Here’s a brief summary:

The Supreme Court’s “compelled speech” doctrine says that it’s unconstitutional for the government to force you to say, do, or create something expressive (whether verbal or not) that carries a message you reject—unless coercing you in this way serves a compelling public interest.

Forcing Phillips to custom-design and create same-sex wedding cakes is compelled speech: it forces him to create an expressive (artistic) product carrying a message he rejects. It forces certain content onto his artistic work, in a kind of political censorship of art. And it does so without serving the type of interest that our constitutional law would consider a legitimate (much less a compelling) justification for interfering with anyone’s free speech. So Colorado’s decision violates Phillips’s First Amendment rights.

This argument applies three premises drawn from earlier cases….

I’ll defend these three steps below, each under its own heading. Along the way, I’ll answer the best ten counterarguments leveled by Colorado, by the ACLU, and by scholars who filed amicus briefs against Phillips. Let me highlight the three most popular ones, which I address one-by-one in the other three sections below. One contends that the “speech” here is that of the same-sex couple, not Jack Phillips, so he has no valid complaint. Another holds that we shouldn’t honor compelled-speech claims arising in commerce, period. And according to a third—which has emerged as the most powerful objection—the Commission hasn’t compelled Phillips’s speech because it hasn’t tried to control the design or content of his cakes, but only insisted that he sell cakes of the same design and content to anyone who asks. I’ll show that this argument rests on a subtle but fatal flaw.

I urge you to read Girgis’s three-step argument and responses to the above objections. It’s hard to imagine how anyone could find his carefully-crafted argument unreasonable, even if they strongly object to Phillips’s actions. As a country, we have to be able to separate our moral judgment of Phillips’s actions from the value of upholding free speech and religious freedom rights, all of us supporting the latter even when it violates the former.

Our First Amendment freedoms are invaluable, even when, at times, they lead to some people feeling offended. In fact, protections for those freedoms are needed precisely because we often consider the speech of others to be harmful in some way; the temptation will always be to shut down speech we don’t like. But as Girgis points out:

[T]o keep our society open and dynamic, we must allow the expression of dissenting ideas precisely when they deeply offend us. A policy of silencing today’s offensive dissent will mute the voice for tomorrow’s reform, since reforms always debut as ideas offensive to a majority.

As Americans, we need to remind ourselves of what we have foundationally valued and why. Free speech, even with all its messiness, is a great good worth protecting. We’re about to find out if we’re still committed to it. Let us hope and pray that the outcome of this case will be as reasonable as Girgis’s article, and that First Amendment freedoms—for everyone—will be valued and upheld.

Amy K. Hall

Dec2017

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