This past June, the United States Supreme Court handed down a decision in the infamous Masterpiece Cakeshop case. For those who are not familiar with the case, it involves a Christian baker in Colorado who refused to provide a wedding cake to a same-sex couple. The Colorado Civil Rights Commission imposed a series of penalties on the baker for violating the Colorado Anti-Discrimination Act. The Colorado Court of Appeals affirmed the Colorado Civil Rights Commission’s order. After the Colorado Supreme Court refused to hear the case, it made its way to the United States Supreme Court. In a 7-2 decision, the Supreme Court ruled in favor of the Christian baker and reversed the Colorado Court of Appeals decision. In this column, I will be arguing that the Supreme Court ruled correctly, but the majority opinion should have embraced the arguments made by Justice Thomas in his concurring opinion. Christian bakers are constitutionally protected from government compulsion to express certain messages they deem contradictory to their religious beliefs.
Justice Thomas’s concurring opinion
In a magnificent concurring opinion that reads like the Bible (or a Mariah Carey song — whatever holy text is significant to you), Justice Thomas addresses the central question of whether or not Phillips’ First Amendment rights protect him from being compelled by the government to create wedding cakes for same-sex marriages.
First, Justice Thomas addresses the Colorado Court of Appeals’ argument that, if Phillips were forced to make the cake, observers would merely believe Phillips was acting in accordance with Colorado law rather than personally expressing a message. The Court of Appeals goes so far as to argue that Phillips could post a disclaimer in his store stating that his creation of wedding cakes for same-sex marriages is just compliance with Colorado law rather than personal endorsement. Justice Thomas begins his legendary destruction of this argument by stating, “This reasoning flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak.” That argument could indeed be used to justify the government’s compulsion of almost any kind of speech — “We’re going to pass a law that forces all citizens to declare that President Trump is the greatest president of all time. Oh, you don’t want to say that? But people will just think that you are complying with the law rather than personally expressing that message!”
Second, Justice Thomas makes the argument that Jack Phillips’ creation of a wedding cake does constitute expressive conduct and, therefore, warrants protection under the First Amendment. Justice Thomas cites an earlier Supreme Court decision in which the Court ruled that burning the American flag was expressive conduct and was, therefore, protected by the First Amendment (Texas v. Johnson). Referring to this decision, Justice Thomas writes, “A person’s conduct may be ‘sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.’ Applying this principle, the Court has recognized a wide array of conduct that can qualify as expressive, including nude dancing, burning the American flag, flying an upside-down American flag with a taped-on peace sign, wearing a military uniform, wearing a black armband, conducting a silent sit-in, refusing to salute the American flag and flying a plain red flag.” If the Court recognizes that flying the American flag in a particular manner (with great political and moral implications) is an expressive conduct protected by the First Amendment, certainly the Court should recognize the similar expressive conduct (with similar political and moral implications) in designing, baking and decorating a wedding cake that conveys a specific, celebratory, affirmative message.
Justice Thomas spends several pages of his concurring opinion specifically proving the expressive nature of Phillips’ creation of wedding cakes. The Justice explains the Court’s test for determining if the conduct is “sufficiently expressive” to warrant First Amendment protection, writing: “The Court asks whether it was ‘intended to be communicative’ and, ‘in context, would reasonably be understood by the viewer to be communicative.’” The opinion then describes the meticulously-detailed process through which Jack Phillips uses his artistic talent to design, sketch, bake, sculpt, decorate and deliver each custom wedding cake he creates. Phillips even sits down with each couple to learn about their personalities, understand their preferences and become more personally familiar with their wedding celebration in order to create a cake that reflects that couple’s relationship. As Justice Thomas describes, the process is extremely artistic, intimate and, ultimately, expressive. Justice Thomas quotes Phillips in his concurring opinion, stating, “To [Phillips], a wedding cake inherently communicates that ‘a wedding has occurred, a marriage has begun and the couple should be celebrated.’” The Justice then turns his attention to the expressive nature of a wedding cake recognized by society at large. He cites a quote from Michael Krondl, author of “Sweet Invention: A History of Dessert.” Krondl says, “Wedding cakes are so packed with symbolism that it is hard to know where to begin.” Justice Thomas argues, “If an average person walked into a room and saw a white, multi-tiered cake, he would immediately know that he had stumbled upon a wedding.” When I think of a wedding cake, my first thought is: A wedding has occurred and now we are celebrating. Jack Phillips does not believe the same-sex couple’s wedding is legitimate nor does he think it merits celebration. Wedding cakes are inherently expressive. It is maliciously convenient for people to suddenly pretend that wedding cakes lack an expressive nature in order to wield a statute against Christians and violate their First Amendment rights. Ultimately, Justice Thomas concludes this argument by stating: “Phillips’ creation of custom wedding cakes is expressive. The use of his artistic talents to create a well-recognized symbol that celebrates the beginning of a marriage clearly communicates a message — certainly more so than nude dancing.”
Once it has been concluded that Phillips’ conduct was indeed expressive, the ability of the government to restrict or compel that conduct is severely limited by the First Amendment. As Justice Thomas argues, “Forcing Phillips to make custom wedding cakes for same-sex marriages requires him to, at the very least, acknowledge that same-sex weddings are ‘weddings’ and suggest that they should be celebrated — the precise message he believes his faith forbids. The First Amendment prohibits Colorado from requiring Phillips to ‘bear witness to [these] fact[s],’ or to ‘affir[m] ... a belief with which [he] disagrees.’”
Concluding Remarks
Our Founding Fathers are rolling over in their graves at the idea that the government should have the power to compel private citizens to express political speech (a sector of speech that warrants the highest protection) and/or speech that contradicts their religious beliefs.
At the time this incident occurred, there was a raging political debate in the United States over same-sex marriage. In fact, same-sex marriage was still illegal in the state of Colorado at the time the couple in question demanded that Masterpiece Cakeshop create a wedding cake for their marriage celebration. The government itself did not recognize the validity of Craig and Mullins’ marriage, yet they compelled a private citizen to express approval and celebration of an act that the state still considered unlawful. It is utter madness.
Jack Phillips does not have the constitutional right to refuse service to customers on the basis of their sexual orientation (which he never attempted). Phillips does, however, have the constitutional right to refuse to express certain messages and to refuse to violate his deeply-held religious beliefs. The legal action imposed by the Colorado Civil Rights Commission against Jack Phillips is the exact kind of governmental action against which the First Amendment was adopted to protect.
The LGBTQ+ community should be fighting for the rights of Christian bakers to refuse to create wedding cakes for same-sex marriages. Trusting the government to subjectively determine (as the Colorado Civil Rights Commission did) which scenarios or topics warrant government compulsion will never result in prosperity for minority groups. It is those in power and those with political influence that will make those subjective determinations. Does the LGBTQ+ community really trust the government (take the Trump Administration, for example) to make the right decision? Today, the government forces a Christian baker to bake a cake celebrating a same-sex marriage. Tomorrow, the government forces a gay baker to bake a cake for the Westboro Baptist Church with the message: “God hates gay people.” Both compulsions are impermissible, and both ought to be lamented.
With the departure of Justice Kennedy and the imminent arrival of soon-to-be Justice Brett Kavanaugh, the Court will have established a strong, “conservative” majority. Should a similar case pose these major judicial questions again, it is my hope that the Court will do what I almost always hope it does: Let Justice Thomas author the majority opinion.
Jeff is a senior at Notre Dame majoring in Science-Business with a minor in Sociology. A native of St. Louis, Jeff believes that his hometown is the greatest city in the world and is always ready to talk about The Lou. In his free time, Jeff likes to play tennis, bake in the sun, read autobiographies, spend time with friends, talk on the phone with his mother or twin sister and listen to Mariah Carey’s voice soar through one of her signature love ballads. Hate mail can be directed to jmurph29@nd.edu
