Freedom of Speech and LGBTQ Civil Rights

By Bryce Wachtell (PO ’21)

Last December, the Supreme Court heard oral arguments in Masterpiece Cakeshop, Ltd. v Colorado Civil Rights Commission, a case that has regularly made headlines for its potentially widespread impact on the strength of LGBTQ civil rights law. While many view this case as a landmark for religious liberty, the defendant’s primary arguments revolve around the freedom a speech—a noteworthy and strategic decision.

In 2012, Charlie Craig and David Mullins, a gay couple, approached Jack Phillips, owner of Masterpiece Cakeshop in Denver, Colorado, looking to purchase a wedding cake. Phillips, a devout Christian, refused to sell to them, citing his religious beliefs as justification. He had refused to bake other cakes that violated his religious beliefs in the past, including any cakes that celebrate divorce or Halloween. However, Craig and Mullins felt Phillips was unfairly repurposing religious freedom to discriminate against them on the basis of sexual orientation, which is in violation of Colorado state law.

The case intuitively seems to be about the conflict between religious liberty and freedom from discrimination.  However, Phillips has argued that his actions were legal on the basis of freedom of expression—not freedom of religion. That decision may seem unusual, but it’s grounded in sound legal reasoning; the courts have a strong and extensive history of generously interpreting the freedom of speech and more hesitantly interpreting the freedom of religion.

For example, the first amendment—best known for enshrining the right to free speech—has come to also include the so-called compelled-speech doctrine. In Wooley v Maynard, a married couple who identified as Jehovah’s Witnesses protested a New Hampshire statute that required their license plate bare the motto “Live Free or Die.” The couple asserted that the motto was antithetical to their religious and moral beliefs, contending that the state had no right to force them to display something that they opposed. Ruling in the couple’s favor, the court asserted that legally requiring or compelling speech is itself a violation of the first amendment. As the opinion reads, “The First Amendment protects the right of individuals… to refuse to foster… an idea they find morally objectionable.” Though Wooley surely involved protection of dissenting religious beliefs, the legal case truly swung on the hinge of freedom of speech.

Alternatively, precedent does not treat arguments grounded exclusively in religious freedom as generously as it has those that rely on freedom of expression. In Newman v Piggie Park Enterprises, the court rejected the notion that a barbeque restaurant owner could refuse service to an African-American on the basis of religious belief. The court’s ruling against Piggie Park Enterprises established a critical precedent that fortified the Civil Rights Movement: religious liberty doesn’t always—in fact, often does not—authorize or enable discrimination.

Lawyers defending Masterpiece Cakeshop were surely aware of the judicial strength of speech and weakness of religion; it was in their best interest to frame the disagreement in front of them as a compelled-speech (not religious liberty) issue. Phillips specifically cites Hurley et al. v Irish-American Gay, Lesbian, and Bisexual Group of Boston Inc. to justify the argument that the case is one of speech, not religion. In Hurley, Boston organizers refused to allow a place for a gay-rights group to march in their city-approved Saint Patrick’s Day Parade. The Supreme Court ruled that the parade—a celebration—was also a form of expression, and that requiring organizers to give the group a spot indeed violated the compelled-speech doctrine. The decision effectively suspended Massachusetts state law prohibiting discrimination on the basis of sexual orientation in such circumstances in which freedom of expression was infringed.

Despite the generous interpretations of freedom of expression, the first amendment does go with its fair share of checks, which the defendant’s argument must be cautious of. Perhaps the most famous of these checks is the “clear and present danger” principle, established in Schenck v United States. As Justice Oliver Holmes wrote, “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” But checks go far beyond just this; the Supreme Court limited speech that infringed upon another’s intellectual property in Harper & Row v. Nation Enterprises and other limitations on the first amendment —from libel to obscenity—have become fairly commonplace in recent decades.

Now, the Supreme Court faces two major questions in relation to Phillips’s argument.

First, is creating a wedding cake a form of expression? Does it fall into the same category as parades and campaign donations, or is it more analogous to serving barbeque, as in Newman?

Second, if indeed baking a cake is considered a form of free expression, does the compelled-speech doctrine override state law, as in Wooley? Or might violations of civil rights law banning discrimination present another limitation to the first amendment?

Whatever the case, the Masterpiece Cakeshop case is sure to have sweeping legal implications for the strength of the first amendment and the future of LGBTQ civil rights protections. A decision from the court is expected this summer.

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