Wedding Cake Brief
I filed a brief in the United States Supreme Court yesterday in the wedding cake case on behalf of Mike Dorf, Seana Shiffrin, and myself. We address the free speech issue in the case, but not the religion issue.
We argue that wedding cakes are not speech within the meaning of the First Amendment, at least in the absence of a specifically articulated message on the cake. Although Jack Phillips, the baker in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, has religious objections to producing wedding cakes for same-sex weddings, a wedding cake does not communicate that a wedding should be celebrated, and a wedding cake has no theology. It does not carry a message of divine approval. It carries no message that contradicts the baker’s ideology.
The baker maintains that his cakes are art, but no court has ever held that wedding cakes are the kind of art that is protected under the First Amendment. To be sure, it would be the rare baker who did not decorate a wedding cake. Many would maintain that decoration involves artistic ability, so, in a loose sense, they are artists. But that does not mean they produce art within the meaning of the First Amendment.
It would be perilous for the courts to attempt to discern, cake by cake, which is worthy of the label “art.” Judges are not art critics. They do not make ad hoc judgments whether some music is art and some is not. Instead, courts have made the categorical judgment that music is speech within the meaning of the First Amendment. Lower courts should not be sent down a road in which they determine what is or is not art among bakers, florists, or jewelers. Although some long-recognized art forms count as expression within the meaning of the First Amendment even absent an articulate message, unless boundless forms of human activity are to count as art, a line must be drawn narrowly. Music falls within the scope of the First Amendment; the products of jewelers, florists, chefs, and bakeries do not, even though they involve skill and aesthetic judgment.
Even if wedding cakes are “speech,” we argue that compelling a baker to produce such speech for a same-sex wedding in violation of the Colorado anti-discrimination statute does not violate the principles of free speech under existing law. It would be quite unwise to change those principles. The Colorado Anti-Discrimination Act is directed at discriminatory conduct whether or not it takes the form of speech. It applies to the hair dresser, the dress designer, the florist, the jeweler, the interior decorator, the chef, the bartender, the candlestick maker, and the baker. All make artistic choices that make a wedding attractive. To stretch the First Amendment to cover this wide range of goods and services and to disrupt established precedent would threaten civil rights law not only with respect to sexual orientation, but also with respect to race, religion, and gender.
Here is a link to the brief: https://www.aclu.org/…/charlie-craig-and-david-mullins-v-ma…
For links to the other documents in the case, go to https://www.aclu.org/…/charlie-craig-and-david-mullins-v-ma…