To be sure, the court essentially ruled that Duka and Koski were free to engage in sexual orientation discrimination in some circumstances, but the court merely applied settled constitutional law principles related to compelled speech. In 1943, at the peak of American nationalism, the U.S. Supreme Court held it unconstitutional to require a student to salute the American flag in contravention of her beliefs:
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.Four decades later, the Supreme Court held that the First Amendment protected the right of George and Maxine Maynard to cover up the motto "Live Free or Die" on the New Hampshire license plate, which they found morally objectionable. The Brush & Nib decision is merely a logical outgrowth of the same constitutional limitation on the authority of the state to compel a citizen to voice support for a viewpoint with which she disagrees.
Understandably, LGBT advocates are wont to advance legal arguments against LGBT discrimination. Unfortunately, however, this has all too often been at the expense of sound constitutional law principles regarding free speech. In 1995, the Supreme Court unanimously upheld the right of organizers of a St. Patrick's Day parade to prohibit marchers representing an LGBT contingent from displaying the contingent's banner during the march. Forcing the march organizers to allow the LGBT contingent to display the banner pursuant to a Massachusetts anti-discrimination statute violated the organizers' right to control what they chose to express through the march. In 2006, LGBT advocates found it convenient to take the side of free speech in arguing that law schools could prohibit on-campus recruitment by branches of the military on the grounds that the military discriminates against LGBT servicemembers. Unanimously rejecting that claim, the Court ruled that the speech that law schools engaged in, such as in sending emails about military recruiters, was incidental to the conduct necessary for schools to comply with the Solomon Act, which required schools receiving federal financial assistance to allow military recruiters the same access provided to other recruiters. In Brush & Nib, LGBT advocates once again manipulated freedom-of-speech principles in service of the outcome they wanted.
I don't mean to suggest that there are no situations in which the government's interest in preventing discrimination outweighs an individual's interest in personal expression. As LGBT advocates would have it, however, someone selling a service must not be allowed to discriminate against LGBT individuals, regardless of the nature of the service. On the other hand, should we interpret the First Amendment to protect an individual's right to refuse to provide a service as long as it arguably involves any degree of self-expression? The custom-made wedding invitations at issue in Brush & Nib involved both written speech and the widely recognized art form of calligraphy. Therefore, they were clearly entitled to constitutional protection. If not, then why couldn't a composer be required to write music for a film whose message she finds abhorrent or a sculptor be required to sculpt the image of someone she detests?
More difficult than cases involving custom-made invitations are those involving custom-made wedding cakes, which may not include writing and, unlike calligraphy, are not a widely recognized medium of self-expression. True, cakemakers may view their creations as artworks in the same way that a painter or poet looks at his own work. But there have to be some limits. If cakemaking is insulated from claims of discrimination, what's to stop the florist or caterer who sincerely views his work as expressive from claiming an exemption from anti-discrimination laws?
One potential solution is presented in an amicus brief filed by the Unity Fund and Law Professors Dale Carpenter and Eugene Volokh in Masterpiece Cakeshop v. Colorado Civil Rights Commission. The amici argue that a medium is entitled to First Amendment protection only if it has been historically protected or it is inherently expressive:
Deciding whether a particular medium is generally expressive requires a degree of judgment and linedrawing; but tradition, history, and common experience usually offer a sound basis for drawing those lines. Paintings, for instance, have long conveyed messages, whether about religion, politics, the character of the painting’s subject, or the beauty of the scene that the painting depicts. Having courts decide case by case whether a particular painting conveys enough of a message would require aesthetic judgments that courts are ill-equipped to make.
But when the medium as a whole mainly consists of items that do not convey a message (except perhaps insofar as words may be written on them), it is not protected by the First Amendment—even when the items may be designed with aesthetics in mind and even when the creator subjectively intends to "express" something by the creation. Landscaping, for instance, can be beautiful and artistic, and "expressive" of the designer’s judgment. But laws requiring people to keep their lawns cut do not pose First Amendment problems.The U.S. Supreme Court managed to avoid having to make these hard choices in the Masterpiece Cakeshop case, but it won't be able to avoid them for much longer. If LGBT advocates are to prevail and avoid repeating the disastrous defeats of the gay parade and Solomon Act cases, they would do well to recognize that broad protections of free speech benefit all of us.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.