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On cakes and free speech

December 6, 2017

When David Mullins and Charlie Craig decided to get married five years ago, I’m guessing they didn’t expect to find themselves before the U.S. Supreme Court.

Mullins and Craig are, famously, the couple who went to Masterpiece Cake Shop in Lakewood, Colorado to have owner Jack Phillips make their wedding cake. Phillips, citing his so-called “Christian” beliefs, refused.  Mullins and Craig filed a complaint with the Colorado Human Rights Commission, which determined that Phillips had discriminated against them.  Citing the First Amendment (and underwritten by a far-right legal outfit called the “Alliance Defending Freedom”), Phillips has appealed all the way to the nation’s highest court.

And yesterday, the nine justices heard oral argument.

It is always challenging to come to a just resolution when two constitutional rights are in direct conflict.  And this case, in particular, has divided First Amendment experts. Says one side, artists (photographers, writers, singers, actors, painters) and others who create First Amendment-protected speech must have the right to decide which commissions to take on and which to reject.  True, says the other side, but someone who is baking a cake is not an artist, but is closer, analytically, to a chef who, no matter how visually stunning his creations may be, has no right to prohibits gays from patronizing his establishment. Yes, says side one, but the fact that Phillips’s medium is icing and not ink does not diminish the artistic quality of his work.  Maybe, says side two, but at some point you simply have to decide what constitutes speech and what doesn’t.  Otherwise, all human behavior could be called expressive.

It is now up to the nine justices.  The smart money says that the decision will be by a 5-4 majority, and that Justice Kennedy, as usual, will be the deciding vote.

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