Another case that the Court will hear next Term involves a baker who refused to make a wedding cake for a same-sex wedding. The state anti-discrimination statute was held to prohibit that refusal and a Colorado court ordered an equitable remedy. On certiorari. the baker is arguing that his Free Speech and Free Exercise rights are violated by that decision.
I find this case difficult. On the one hand, personal beliefs cannot result in a general exemption from anti-discrimination statutes. On the other hand, there is something very troubling about making someone to engage in creative expression against their will.
One way of thinking about this problem involves focusing on what constitutes creative expression for a free speech claim. (I think this claim is more compelling than the free exercise claim, though some of the Justices will disagree.) Say I own a banquet hall that I rent out for weddings, but I say no same-sex weddings. It’s hard to see how there is any expression involved in banquet hall rentals that would entitle me to say no.How about a restaurant hosting a wedding reception? Cooking is expressive to some extent, but if I just do a standard set of menu choices for weddings than it is hard to see how the kind of wedding reception that I’m hosting matters for expression.
The strongest expressive claim in this context is a wedding photographer. Wedding photography involves a lot of time, thought, and creativity. To say that someone must photograph a same-sex wedding when they do not want to strikes me as a serious First Amendment problem.
How about wedding cakes? My initial thought is that this claim is not that strong as framed by the record. Making a cake can be expressive, especially if you get a custom design. But there are many, standard wedding cakes where the only “expression” is writing the names on the cake. If a baker was presented with a same-sex couple who said, “We want you to do a cake and have lots of specific requests to make,” maybe that could involve enough expression to present a problem. In this case, however, the baker just said he wouldn’t do cakes for a same-sex weddings. It wouldn’t matter what kind of cake was ordered or if the request was simply, “I want that cake in the window.” This seems more like the banquet hall or restaurant scenario than the photographer.
In sum, I think that there is a First Amendment limitation on the reach of anti-discrimination statutes for same-sex marriages, but I don’t think that the petitioner qualifies.