by The Daily Signal | 3.27.18
Stephanie Taub / February 16, 2018
Stephanie N. Taub is senior counsel to First Liberty Institute, a non-profit law firm dedicated to defending religious freedom for all. Read more at FirstLiberty.org.
The story is all too familiar by now: A same-sex couple asks a religious baker to custom create a wedding cake. The baker politely apologizes, but the resulting lawsuit shuts down the bakery.
But this time, the story has a different ending—for now.
Cathy Miller runs a bakery in Bakersfield, California, called Tastries Bakery. Because Miller’s religious convictions prevented her from using her creative expression to lend support to a same-sex wedding, she referred the couple to a competing bakery.
After the couple filed an administrative complaint, the state of California filed suit against Miller. The lawsuit sought to use the coercive power of government to compel her to create custom wedding cakes with messages that violate her religious convictions.
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In other words, bake the cake or go out of business. But this is where the story takes a turn.
Earlier this month, a California state court ruled in favor of Miller. According to the court’s opinion, the law allows room for disagreement between people of goodwill. The state cannot compel Miller to create custom wedding cakes if she does not wish to convey a particular message.
The court concluded that it has an obligation to protect free speech for everyone. More directly, Judge David Lampe reasoned that, while everyone should be able to purchase ready-made goods regardless of what the customer plans to do with the goods, custom art is different.
Lampe concluded, “The state is not petitioning the court to order defendants to sell a cake.” Something more is at stake.
According to Lampe, the state of California was trying to “compel Miller to use her talents to design and create a cake she has not yet conceived with the knowledge that her work will be displayed in celebration of a marital union her religion forbids.”
In the modern context, the judge’s wisdom is remarkable. Just ask Jack Phillips, another baker who was fined by his state’s government for similar reasons, and whose appeal is currently before the United States Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.
Yet, based on decades of Supreme Court precedent, it is nothing new.
Courts have long regarded the First Amendment as protecting Americans against a government that would force someone to express a government-approved message. The idea that the government should be able to use its power to force someone to express something against his or her conscience is anathema to the very purpose of the First Amendment.
This is why the ACLU is right when, in explaining the law on “Freedom of Expression in the Arts and Entertainment,” it says, “Freedom of expression for ourselves requires freedom of expression for others.”
Lampe’s reasoning, like the ACLU’s, draws from a well-established line of Supreme Court cases protecting everyone’s right to be free from the government telling you what to say—or believe.
For instance, in the landmark 1943 case West Virginia State Board of Education v. Barnette, the Supreme Court ruled that the government could not compel a Jehovah’s Witness student to salute the flag or say the Pledge of Allegiance—and that was when such an act of peaceful protest was seen as dangerous to national unity.
Then as now, the point is the same: The First Amendment protects expression, artistic or otherwise. The state cannot force citizens to create a government-approved message.
The Supreme Court’s forthcoming decision in Masterpiece Cakeshop may affect cases like Miller’s throughout the country. For instance, my firm, First Liberty Institute, represents Aaron and Melissa Klein, the owners of Sweet Cakes by Melissa, a bakery in Oregon penalized $135,000 for declining to create a custom wedding cake because of their religious beliefs. Their case will soon be appealed to the Oregon Supreme Court. Cathy’s case will likely be appealed, too.
But the First Amendment is not designed to protect only popular speech. The true test of whether we actually believe in the promise of the First Amendment is speech we find socially controversial.
Popular ideas are not in great danger of being suppressed or silenced. The true test of our commitment to freedom is if we welcome that disagreement and live peaceably as neighbors anyway.
Lampe passed that test. We hope others will, too.
Written by The Daily Signal
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