The Christian Baker’s Unanswered Legal Argument: Why the Strongest Objections Fail
by Sherif Girgis
within Conscience Protection, Constitutional Law, Religion and the Public Square
Nov 29, 2017 08:00 pm http://www.thepublicdiscourse.com/2017/11/20581/
The Supreme Court is about to decide whether a baker has a First Amendment right not to be compelled to design and create cakes celebrating same-sex weddings. The baker’s best legal argument is simple, and it survives the best objections filed by the ACLU and Progressive scholars.
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Next week, the Supreme Court will hear one of the most important free speech cases in years, a case of special concern to libertarians and conservatives, small business-owners, artisans, and religious believers. Masterpiece Cakeshop v. Colorado Civil Rights Commission involves Jack Phillips, a baker who claims a First Amendment right not to be compelled to design and create custom wedding cakes for same-sex weddings. Many legal commentators think the case is either a very close call or a certain defeat for Phillips.
In fact, Phillips’s case is very strong. It is based on freedom-of-speech doctrines favored by conservatives and liberals alike. One argument for Phillips in particular survives the best objections leveled in briefs filed by the Colorado Civil Rights Commission, by the ACLU (on behalf of the couple who sought the cake), and by several constitutional law scholars.
That argument rests on the widely acknowledged principle that freedom of speech has to include the freedom not to speak. You aren’t free to express your convictions authentically if the state can make you affirm its own orthodoxies. Thus, for more than seventy years, in cases widely seen as more American than apple pie, the Supreme Court has said government can’t force you to say, do, or make something that carries a message you reject. Applying that principle, it has held that the government can’t force Jehovah’s Witnesses to salute the flag. It can’t force newspapers to carry columns by politicians criticized in their pages. It can’t force drivers to carry license plates with a state-imposed (though utterly banal) slogan (“Live Free or Die”). It can’t force companies to include third-party messages in their billing envelopes. Political majorities are entitled to enact their beliefs into law, but not to force dissenting minorities to affirm those or anyone else’s beliefs in word or deed. That would involve “compelled speech,” which is generally unconstitutional.
Phillips argues that the Colorado Civil Rights Commission has compelled his artistic expression (which counts as “speech” under our law) by forcing him to create same-sex wedding cakes if he wants to stay in the wedding business. To be clear, Phillips serves all patrons, whatever their religion or sexual orientation. But he won’t design cakes celebrating themes that go against his religious beliefs as an evangelical Christian. So he takes a hit to his business to avoid designing cakes for Halloween parties, which are big sellers, as well as lewd bachelor parties, divorce parties, and much else. And he won’t design cakes that celebrate same-sex weddings since he believes that only a man and woman can form a true marriage. Finding this last practice illegal, the Colorado Civil Rights Commission ordered Phillips to make same-sex wedding cakes if he wants to make any at all. The Supreme Court’s decision on whether this order violated his rights may decide the fate of other bakers—and florists and photographers—who’ve faced legal penalties (as crippling as $135,000 and risk of jail) for refusing to lend their creative talents to designing artistic products celebrating same-sex weddings.
The Best Argument for Jack Phillips, in Three Steps
The Supreme Court’s “compelled speech” doctrine says that it’s unconstitutional for the government to force you to say, do, or create something expressive (whether verbal or not) that carries a message you reject—unless coercing you in this way serves a compelling public interest.
Forcing Phillips to custom-design and create same-sex wedding cakes is compelled speech: it forces him to create an expressive (artistic) product carrying a message he rejects. It forces certain content onto his artistic work, in a kind of political censorship of art. And it does so without serving the type of interest that our constitutional law would consider a legitimate (much less a compelling) justification for interfering with anyone’s free speech. So Colorado’s decision violates Phillips’s First Amendment rights.
This argument applies three premises drawn from earlier cases:
First, under clear Supreme Court precedent, the free speech clause applies to artistic creations (“artistic speech”) every bit as much as books, speeches, and other verbal forms of expression.
Custom-designed wedding cakes fall under the very broad standard by which courts decide what counts as “artistic speech.”
Second, as the Court has also held, the message conveyed by a symbolic item depends on its context.
Wedding cakes’ context and purpose give them a clear meaning: they express the idea that the couple’s bond should be celebrated as a marriage.
Third, the Court has held that counteracting offensive, hurtful, or demeaning messages is never a compelling (or even a legitimate) goal for governmental interference with free speech or expression.
Yet the only net benefit of coercing Phillips is to suppress what many call dignitary harm: the distress of being confronted with ideas deemed offensive, hurtful, or demeaning. After all, there are no material harms at stake; and under Supreme Court precedent, it won’t suffice for Colorado to cite “antidiscrimination” as a generic justification here.
The first two points prove that by forcing Phillips to bake a same-sex wedding cake, Colorado forces him to (1) create First Amendment expression (2) carrying a message he rejects. The third proves that this coercion serves no compelling governmental interest and is therefore unconstitutional.
I’ll defend these three steps below, each under its own heading. Along the way, I’ll answer the best ten counterarguments leveled by Colorado, by the ACLU, and by scholars who filed amicus briefs against Phillips. Let me highlight the three most popular ones, which I address one-by-one in the other three sections below. One contends that the “speech” here is that of the same-sex couple, not Jack Phillips, so he has no valid complaint. Another holds that we shouldn’t honor compelled-speech claims arising in commerce, period. And according to a third—which has emerged as the most powerful objection—the Commission hasn’t compelled Phillips’s speech because it hasn’t tried to control the design or content of his cakes, but only insisted that he sell cakes of the same design and content to anyone who asks. I’ll show that this argument rests on a subtle but fatal flaw. So feel free to jump to the section that addresses your favorite objection, as this essay is long.
Step One: The First Amendment Covers Phillips’ Artistic Product
Let’s dispense with the weakest objection first. Many say that a win for Phillips would send us down a slippery slope, since almost anything can be expressive. If a vendor has to cater salad for a wedding reception—or even rent out folding chairs for the big day—doesn’t that force the vendor to support the couple’s marriage in some sense? For that matter, don’t we force sexist employers to support the idea of women working outside the home when we bar them from discriminating against women in hiring? Didn’t we force the racist owners of Ollie’s Barbecue to support integration when we made them serve African Americans in their restaurant? “If we exempt Phillips, won’t we have to exempt all these people from antidiscrimination law?” ask his critics.
But the best argument for Phillips is not that forcing people to sell a product for an event by itself compels them to endorse the event; it’s that forcing them to create speech celebrating the event does. And under longstanding precedent, First Amendment “speech” includes artistic creations (“artistic speech”) like paintings, right alongside books and sermons and other items involving words. So unlike folding chairs, and unlike restaurant dining service, custom wedding cakes are full-fledged speech under the First Amendment—if they’re artistic.
And the Court’s standard for “artistic speech” is broad. It looks for anything so much as an “attempt at serious art.” Under this standard, courts have included pictures, films, paintings, drawings, engravings, sculptures, tattoos, and even custom-painted clothing. Indeed, the Supreme Court has assured us that artistic speech needn’t carry a “succinctly articulable” or “particularized” message; as examples of protected art with amorphous content, the Court has cited the atonal instrumental music of Arnold Schoenberg, the abstract paintings of Jackson Pollock, and the gibberish verse of Lewis Carroll’s “Jabberwocky.”
Under this liberal standard, custom-designed wedding cakes should surely count as artistic creations, and thus as First Amendment “speech.” To make them, after all, Phillips (1) draws on his artistic talents and skills to (2) choose from an endless array of shapes, colors, designs, and decorations, in producing something that will then (3) be judged mainly for its aesthetic qualities. The creative nature, complexity and range of possible designs, and overwhelmingly aesthetic purpose all explain how these cakes can reflect their creators’ artistic identity and sensibility, according to Phillips and other wedding-cake designers. Protecting that expressive autonomy is the point of First Amendment protection for art. So the three features just mentioned are surely enough to show that custom wedding cakes are just as artistic as Lewis Carroll’s Jabberwocky verse. Would anyone doubt this point, if the result of Phillips’s design and handiwork were a sculpture of just the same shape, color, and design as the wedding cakes he actually makes? Why should it matter that Phillips molds batter, not plaster, or that he colors and decorates with icing, not acrylic paint?
Legal scholars Eugene Volokh and Dale Carpenter argue that unlike sculptures or paintings, wedding cakes are primarily “utilitarian”: they’re made to be eaten! But that is surely secondary. Couples don’t spend hundreds or thousands of dollars on wedding cakes out of fear that their guests might still go hungry after the salmon or filet. Nor do newlyweds make a big show of feeding the cake to each other in order to model what guests should do when their own slices come around. No, the overwhelmingly dominant purpose of having wedding cakes is to make them integral to the celebration of a new marriage—first as the centerpiece of that celebration, and then as part of its programming.
Wedding cakes in this respect are like central props in a play. And we wouldn’t let lawmakers force dissident artists to design props for use in plays promoting the state’s favored messages.
Professors Volokh and Carpenter also argue that wedding cakes shouldn’t get First Amendment coverage because they haven’t been covered in earlier cases. But that’s because the question has never been forced; even meddlesome city councils and state legislatures have never before tried to regulate wedding décor. So the novelty of wedding-related claims shouldn’t prevent us from treating them as we would claims by traditionally protected artisans like sculptors.
To be clear, it can be good, not meddlesome, to pass laws guaranteeing people access to key goods and services. But it is meddlesome to use those laws to regulate artistic-expressive content when no couple is at risk of losing access to wedding cakes, flowers, or photographs. That is anti-free speech through and through; it takes aim at the (artistic) expression of ideas that offend the majority.
Step Two: Its Purpose and Context Impose on Each Wedding Cake a Message Specific to That Wedding
It’s crucial to see that this compelled-speech argument doesn’t rely simply on the idea that wedding cakes count as art. That’s because forcing you to make an artistic product doesn’t always force you to create something expressing a message you reject, which is all the compelled-speech doctrine forbids. For example, photography is art—and hence First Amendment “speech”—but this doesn’t prove that we violate your freedom from compelled speech by forcing you to do photo shoots for Latinos if you do them for whites.
But that example is different from this case (contra Colorado’s brief). It’s one thing to say “create art for gay patrons if you do for straight patrons”; it’s quite another to say “create art for same-sex weddings if you do for opposite-sex weddings.” Phillips has always followed the first rule (about gay and straight patrons), which doesn’t yet force any particular content onto his artistic work. But the rule focused on weddings does. That’s because wedding cakes aren’t simply artistic; they’re celebratory. In particular, they’re art that carries a certain message: that this relationship is a new marriage, to be celebrated as such. And that is why forcing people to create them raises compelled-speech concerns. Against this, Colorado offers two objections.
First, the state suggests that this argument for Phillips would license too much; for example, it would allow racists to refuse to serve black people birthday cakes, since those too are celebratory. But compelled-speech claims are about not having to make something that carries expressive content you reject. Now it’s certainly hard to imagine someone having a sincere moral objection to celebrating a person’s living to see another year, period. So to have a compelled-speech claim against making birthday cakes, you’d have to believe—and care—that it wasn’t truly the person’s birthday, or perhaps that celebrating birthdays was wrong (e.g., pagan and idolatrous).
Second, Colorado also says that wedding cakes convey no message unless they have words on top. And here the couple hadn’t yet told Phillips whether they wanted words on the cake. So Phillips should lose.
But we’ve already seen that wedding cakes are expressive, since they’re artistic. So they can carry expressive content. And it isn’t only letters or symbols that give content to an expressive item: so does context. As the Supreme Court observed in one case, “The context in which a symbol is used for purposes of expression is important, for the context may give meaning to the symbol.” Applying this principle, the Court found that the display of an upside-down flag with an attached peace sign carried an anti-war message because of its timing. Draped at a time of escalating international conflict, it conveyed opposition to military action in Cambodia. Now if the current events that overlap in time with an expressive item can specify its meaning, so can the once-in-a-lifetime party for which an expressive item is explicitly and exclusively designed—especially when that party’s sole and unmistakable purpose is to celebrate a proposition: “This couple just got married!” With wedding cakes, by their nature and range of designs, the medium is part of the message.
If you have any doubt that a cake designed for a wedding reception signifies something (“hooray for this new marriage!”) even before words are inscribed, try imagining one with words expressing skepticism about whether the happy couple had formed a true marriage or whether this was something to celebrate. Or imagine a cake with colors and shapes that were always associated with sadness and doom. These suggestions are absurd. They show that wedding cakes, by their inherent purpose and range of imaginable designs, are understood by everyone to signify this much at least: “Hooray for this new marriage!” And I do mean everyone. If you asked 100 people whether wedding cakes are celebratory of the marriage they’re used for, 100 would say yes (unless you mentioned that you were asking for a friend named Jack Phillips).
Is Commerce Different?
Some would say that Phillips should have no right against compelled speech in the commercial context—that is, when he’s being paid for the compelled expression. But that has never been our law. Indeed, in a previous case in which the Supreme Court struck down governmental action that had interfered with an entity’s free expression (on LGBT-antidiscrimination grounds, as in this case), the Court reaffirmed that a speaker’s “autonomy to choose the content of [its] own message” is “enjoyed by business corporations generally,” including for-profit entities that aren’t the sole origin of every “item featured in” their expression. In general, as the Supreme Court has elsewhere noted, “it is well settled that a speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because he or she is paid to speak.”
Besides, does anyone really think vendors should always lose compelled-speech claims? Should states get to force commercial artists to paint whatever a patron requests that’s closely tied to his protected status? If a Unitarian asks for a portrait depicting her vision of heaven (as filled with everyone), should a Westboro Baptist get to make the same painter depict his vision of hell (as filled with… almost everyone)? Should an Islamophobic sect get to force Muslim caricaturists to sketch mocking images of the Prophet? Clearly not.
The Best Counterargument
A better objection appears in a brief filed against Phillips by a Who’s Who of First Amendment scholars, including Floyd Abrams, Walter Dellinger, and my brilliant professor and former dean of Yale Law School, Robert Post. Their argument is the strongest to emerge since the Court decided to take Phillips’s case. It says, effectively: “Sure, we’ll grant that wedding cakes carry a certain message, and that even commercial bakers should get to pick what message to make them carry. Still, bakers have no right to deny the same cake (with the same design and content) for one wedding that they’ve made for another. Forcing them to make the same cake for a different wedding only ‘forces’ them to affirm what they were already willing to affirm.”
Set aside the fact that Phillips custom-designs each wedding cake after consulting with the couple on how to fit the design to their relationship and the flavor of the celebration they’re after. The First Amendment scholars’ argument assumes that two cakes with the same design will carry messages with the same meaning no matter which event they’re created for. But that idea, too, is willfully blind to context—and again, the Court has made clear beyond any possible cavil that changing the context can change the ideas being conveyed.
Indeed, it’s incoherent to care about which letters the baker has to inscribe (as these scholars do) but not which context he’s inscribing them for. After all, the only reason to care about forcing a baker to inscribe certain letters is that this might force her to inscribe something with a meaning she rejects. Yet meaning isn’t just about letters; it necessarily depends on context. So if you care about letting the baker choose which letters to write, you have to let her choose her context, too.
Imagine that a fly-fishermen’s association asks you to design a cake for its annual banquet that says, in reference to riverbanks, “Banks are a blessing from the Lord.” Would this cake affirm the same thing as a custom cake with the same letters, but made to order for Deutsche Bank’s gala celebrating another year of rapacious investment banking? If you’re an Elizabeth Warren-voting fly-fisherman, can you bake the first cake but not the second, for reasons of conscience? Not by the logic of the First Amendment scholars. To be consistent, they’d have to say that both cakes affirm the same thing, just because they have the same appearance, even though “bank” in each refers to different things, with the result that the sentences on each have entirely different meanings. That’s clearly the wrong conclusion. Conscientious bakers don’t have scruples about arranging certain letters together, just as such, but about creating messages with certain meanings. Of course, hypotheticals involving homonyms are an extreme example, but they establish a point quite relevant here: context is essential.
Other examples do the same. Say you’re a Progressive artist, and a Unitarian commissions you to paint a mural for her church that says, “What happens here is pleasing to God.” You happily oblige, knowing that Unitarians use their worship-space to pray for and celebrate care for all of creation; embrace of all sexual relations; and the salvation of everyone, regardless of lifestyle or creed. A week later, the leader of a vicious cult comes in to order the same mural for his own worship-space, which you know has been used to desecrate the Qur’an, pray for the extermination of Jews, and implore God to rain hellfire down on gay people forever.
The second mural obviously affirms something different from the first; to deny this because the murals use the same letters would be literalistic in the extreme (in the original sense of fixated on the letters). Again, symbols and letters don’t determine the meaning all by themselves; they mean something only in combination with context. “What happens here” refers to different things based on where it’s posted. Likewise, wedding cakes say, “hooray for this marriage” (whether or not they use words to say it, as we just saw). And “this marriage” refers to different things based on which wedding the cake is created for.
It’s obvious—but irrelevant—that no one would morally equate support for same-sex marriage with the vicious commitments of our imaginary cult-leader. The lurid example only dramatizes the point behind step two of this argument: A cake designed for a particular wedding isn’t just an expressive product. It affirms and celebrates an idea, and one that Phillips rejects in this case: that this particular union is to be celebrated as a marriage.
Now sometimes the context for your inscription is indeterminate—e.g., if you’re writing “yay!” on a cake before anyone has ordered it for anything. In those cases, the meaning is also indeterminate, and you can’t object to having to create the cake (unless, say, you object to celebrations, period). It doesn’t matter if someone later buys it off the shelf for a purpose you oppose. All your “speaking” (your creation of expressive content) was done by the time you put the cake on the shelf, not when you sold it. So you never created expression whose meaning you opposed. But you do just that if the context that gives your expressive item its more specific (and objectionable) meaning is in place when you’re forced to create or decorate the item. Then you really are being asked to create something whose expressive content you oppose. Then your speech is compelled every bit as much as that of a baker forced to write a whole sentence she already finds deeply objectionable.
Thus, forcing Phillips to create an artistic (hence expressive) product, made to order for a same-sex wedding, forces him to create expression whose content he rejects. That’s because a wedding cake created for this wedding says “hooray for this marriage,” with words or not; and Phillips rejects the validity of same-sex marriages.
Won’t Everyone Know the Message is Coming from the Couple, Not Phillips?
At this point, many will object that because couples pay Phillips to create a cake with the message they request, no one will assume that the message is his—that Phillips himself affirms it. So there isn’t really compelled speech. But if “the customer ordered it” were enough to defeat compelled-speech claims, that would entail something even many opponents of Phillips’s legal position have explicitly denied: namely, that Colorado could lawfully force Phillips to inscribe words or images he opposed. Indeed, if the speech is only the customer’s, not the baker’s, then Christian bakers could lawfully be forced to draw sacrilegious images of Jesus, and gay bakers could be forced to inscribe antigay slurs. That can’t be right.
This objection’s mistake is to assume that the only reason to protect you from compelled speech is to avoid misleading others about what you believe. Not so. If that were the only reason, we’d hardly have compelled-speech protections at all. For one thing, virtually every time the state forced you to say something, informed observers would know the law made you say it, so they wouldn’t simply assume you believed it. If that were enough to defeat compelled-speech claims, no such claim would ever get off the ground. Perhaps this is why, to take one example, the Court protected drivers’ freedom not to display license plates bearing a state-imposed slogan, despite the dissent’s observation that people wouldn’t attribute that slogan to the drivers. Likewise, in another case, the Court vindicated a company’s right not to include another entity’s message in its billing envelope even though it was clear that the message came from that third party.
Besides, speakers have always had the ability to clear things up by explicitly disclaiming messages they were being forced to express or convey. That has never stopped the Court from ruling in their favor. Thus, the Jehovah’s Witnesses forced to salute the flag could simply have said that they didn’t mean to pledge their loyalty. Yet the Court rightly found it unlawful to make them go through the motions. The drivers compelled to display a license plate bearing the state’s favored slogan could’ve added a bumper sticker saying they rejected that slogan. It was still unlawful to compel them. It would likewise be unlawful to force someone to create a cake bearing anti-gay slurs, even if she could always drape a rainbow flag to tell you where her sympathies really lay. Nor can a Jewish baker lawfully be forced to inscribe cakes with swastikas just because his yarmulke would reveal his true allegiance. Indeed, the Court has expressly rejected the idea that a speaker’s ability to disclaim a message undercuts a compelled-speech claim. All of this only confirms that the point of compelled-speech protection isn’t simply to avoid confusing others about what you actually believe.
So what other goal does it serve? It spares you from having to be complicit, duplicitous, and hypocritical: It guards your integrity and autonomy, your sovereignty over your own words and expressions. It ensures that you aren’t forced to “affirm in one breath” what you “deny in the next,” as the Court has expressly held. That is why it must protect you against being forced to create speech carrying a message you reject—even if you also get a chance, by other forms of speech, to cancel the implication that you believe that message. Thus, if Phillips is forced to pour his creative talents into the creation of an artistic product that expresses an idea he opposes, it’s no relief to assure him that the wedding guests will understand his hand was forced. He was still made complicit in expression he opposed; his artistic autonomy was compromised.
Step Three: Coercing Phillips Serves No Compelling Interest
Almost every time the Supreme Court has found compelled speech, it has ruled against the government without even stopping to ask if the compulsion was justified. Still, a plurality opinion in one case says that compelled speech can be justified if it’s narrowly tailored to advancing a compelling public interest (the most stringent test the Court ever applies to burdens on constitutional rights). But as I’ll show, the very opposite is true of the compelled speech at issue here. Not only does it not serve a compelling public interest; the goal it serves is one that our law has always deemed inherently illegitimate—absolutely off-limits—as a justification for any regulation of speech.
The first justification many cite for compelling Phillips is simply to fight discrimination in the provision of goods and services. Since the general goal of Colorado’s antidiscrimination law is neutral and legitimate (rather than targeted at the expression of disfavored ideas), so is every application of that law.
But the Court has explicitly considered and rejected that argument twice. It’s held that while antidiscrimination laws don’t “as a general matter” violate the First Amendment, they do when “applied in a peculiar way” that burdens speech. To be clear, in both of these earlier cases, as here, the government had found sexual-orientation discrimination. Both cases involved public-accommodations laws in particular. The government’s professed goal in both cases was to reduce discrimination rooted in “oppos[ition]” to “homosexual conduct.” And in both cases, the Court held that while this generic antidiscrimination goal was legitimate, it wasn’t enough to justify interference with the content of anyone’s speech or expression. The government would have to point to a more specific harm flowing from the discriminatory choice at stake.
In such cases, after all, the specific instance of discrimination being targeted just is the speaker’s choosing (discriminating) among which ideas to affirm—yet that choice is exactly what the First Amendment exists to protect. As the Court noted in one such case, it is the whole “point of all speech protection . . . to shield [even] those choices of content that in someone’s eyes are misguided, or even hurtful.”
Here, in other words, Colorado has applied its antidiscrimination law to regulate Phillips’s choice (“discrimination”) about which messages to affirm through his expressive work. That is, Phillips’s decision to (artistically) affirm one view of marriage and not another just is the “discrimination” being regulated. To justify regulating it by appeal to the goal of fighting “discrimination,” then, is to justify interference with Phillips’s freedom of expression for its own sake. Nothing could be more hostile to the First Amendment.
So, to identify a legitimate justification for interfering with Phillips’s choices of artistic content, Colorado must point to something beyond the fact that they’re discriminatory; they must work further harm. And again, under the stringent test applied to compelled speech, coercing Phillips (and other dissenters from the state’s view of marriage) must be necessary to achieve a compelling public interest.
Colorado would be on strongest footing if coercing Phillips and others like him were essential for ensuring that LGBT people got the material goods they needed. But no one has found a single case in which respecting a wedding vendor’s freedom would deprive any couple of cakes, flowers, or photographs for their wedding. That’s because the number of florists, bakers, photographers, and other vendors who won’t serve same-sex weddings amounts to a “handful” scattered throughout “a country of 300 million people,” according to LGBT rights advocate and legal scholar Andrew Koppelman. (As Koppelman also bluntly admits, “there have been no claims of a right to simply refuse to deal with gay people.”) So the material cost of granting claims like Phillips’s is vanishing to nonexistent. This fact was only reinforced when the couple in another case sued a florist for $7.91—the cost of the gas needed to drive to the next florist.
What’s left as a justification for coercing Phillips, if not the generic goal of antidiscrimination, or the more specific goal of preventing material harm to gay couples? Well, respecting Phillips’s freedom does impose a cost of sorts, but an intangible one. Advocates refer to it as dignitary harm. It’s the distress of being confronted with ideas one finds deeply offensive. In this case, the couple is acutely and perhaps painfully reminded that Phillips and others think their union isn’t a marriage. We must not paper over that hard fact. But to treat it as a reason to interfere with freedom of expression would require drilling through decades of cases to shatter what the Supreme Court has said is the “bedrock principle underlying the First Amendment, [which] is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
Why Majorities May Not Suppress Speech to Fight Dignitary Harm
As the Supreme Court has observed, it is the “proudest boast of our free speech jurisprudence … that we protect the freedom to express ‘the thought that we hate.’” So courts have held that states have no legitimate interest in fighting the distress caused by those ideas. They even lack the authority to fight ideas the majority finds demeaning or biased toward minority groups. They lack that authority even in the context of public accommodations laws, and even when those laws are designed to protect sexual minorities in particular. In one case, in fact, members of the Westboro Baptist Church picketed the funeral of a fallen soldier, with signs bearing anti-gay slurs and saying God sent the 9/11 attacks to punish America on account of gay people. The emotional harm to the bereaved father of that soldier was so great that a jury awarded him $10 million. But the Court—by a vote of eight to one, including every “liberal” justice—overturned that verdict on the ground that it violates the First Amendment to punish offensive ideas, however painful and deplorable.
Here, too, the dignitary-harm argument would imply that majorities may punish expressive conduct whose message they abhor, just because they abhor it. Against this plea, our First Amendment jurisprudence speaks with one confident voice. And with good reason.
First, using coercion here to avoid the sending of offensive messages would be self-defeating. After all, a ruling against Phillips would tell him—with all the cultural authority of the Supreme Court of the United States—that choices central to his identity are bigoted. That is surely as offensive a message as any his conduct might convey to same-sex couples.
Second, to keep our society open and dynamic, we must allow the expression of dissenting ideas precisely when they deeply offend us. A policy of silencing today’s offensive dissent will mute the voice for tomorrow’s reform, since reforms always debut as ideas offensive to a majority.
Third, we have no choice. In a pluralistic society, everyone has views that deeply offend someone, perhaps even disparaging the core of his identity. Because I believe in God, angels, and an afterlife, my secularist friends think I’m deluded. Because I organize my life around worship of the Eucharist, Protestants may think I’ve centered my identity on idolatry: a violation of the first and greatest commandment. These ideas are no less offensive than the suggestion that a couple’s relationship isn’t a marriage, or that a baker’s views on marriage are bigoted. We learn to live with these tensions because the harms of suppressing them are even greater. As Koppelman notes, “the dignitary harm of knowing that some of your fellow citizens condemn your way of life is not one from which the law can or should protect you in a regime of free speech.”
Doctrinal specifics aside, this case is about whether political majorities—having won sweeping legal and cultural victories—can go on to regulate the speech of those who still dissent. That dissent causes real pain, to gay couples and others; but pain of the same sort bubbles out from every fissure in our public life. To respond by trying to seal the vents of dissent is dangerous. It heightens the pressures on the fragile cultural foundations of ordered liberty.
Sherif Girgis earned his JD at Yale Law School and is a PhD candidate in philosophy at Princeton.