Professor Steven Smith has very skillfully laid out what the Masterpiece Cakes case in the Supreme Court is really all about. It has a helpful review of he evolution of anti-discrimination laws, about which more later.
Then in his second part, Smith adds an angle from the academic literature of free speech to add a dimension that I, a very interested amateur, had not appreciated:
In a thoughtful essay entitled “Who Cares Whether Cake-Baking is Expressive?” NYU Professor Rick Hills argues that the expressive quality of Jack Phillips’s cakes should be constitutionally irrelevant. Appealing to writings of (then) Professor Elena Kagan and Yale Professor Jed Rubenfeld, Hills contends that what should matter for First Amendment purposes is “governmental purpose, not private burdens.” …
And so we have to ask: why is government (in collaboration with and on behalf of same-sex couples) going after the bakers and florists and photographers in the marriage cases?
The Centrality of Expression
The question takes us back to the argument of yesterday’s essay. We saw there that in the litigated cases, the states and the same-sex complainants have not primarily relied on the contention that a Christian merchant’s refusal to assist with a same-sex wedding has deprived the couple of any needed product, service, or opportunity. In Masterpiece Cakeshop, another baker supplied complainants with a wedding cake for free; in Arlene’s Flowers, the case of the Washington florist that is currently on appeal to the Supreme Court, the same-sex couple claimed and received $7.91 in damages for the cost of driving to another florist. That was not why the couple and the state brought the lawsuit.
So why were these suits brought? Advocates are often forthright in explaining that these cases are not mainly about material deprivations, which are likely negligible or nonexistent, but rather about the “dignitary harm” or offense suffered when a same-sex couple is in effect told that a merchant regards their marriage as morally wrong or contrary to God’s will.
That claim may be perfectly sincere. But it amounts to a complaint that the couples feel injured by the communication of a message of disapproval. The injuries, in short, are primarily or exclusively expressive in nature. And the remedies sought by the plaintiffs and granted by the courts have likewise been expressive in their content and purpose. Objecting merchants have been ordered to assist with same-sex weddings in the future—not because their services are needed, but because complainants and the states seek to compel them to participate in, to borrow language from the Colorado court, “celebrat[ing] . . . same-sex wedding[s].”
The title of part 2 is “Why the Government Shouldn’t Force Bakers—Or Anyone—to Express Support for Same-Sex Marriage,” and I agree that the government’s purpose in applying nondiscrimination laws to these baker has been, precisely (and unconstitutionally) to compel them to express a message of approval of same-sex marriage. That must not be allowed to stand.
Do read both parts, because part 1 helps to show how an early non-discrimination purpose of assuring that people are not denied needed services has morphed into assuring that people don’t hear a message of disapproval before readily getting their needed services elsewhere.
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“Liberal education is concerned with the souls of men, and therefore has little or no use for machines … [it] consists in learning to listen to still and small voices and therefore in becoming deaf to loudspeakers.” (Leo Strauss)
There is no epistemological Switzerland. (Via Mars Hill Audio Journal Volume 134)