The Cato Institute is wading into the State of Washington's case against Arlene's Flowers owner Baronelle Stutzman. Stutzman has been charged with violating the state's public accommodation laws by declining to provide floral arrangements for a gay couple's wedding. She felt that doing so would compromise her Christian beliefs.
Ilya Shapiro and Jayme Weber have composed an amicus brief in support of Stutzman's position and against the state of Washington's contention that she cannot refuse to serve a gay couple. She was fined $1,000 by the state and is appealing. The argument Cato is presenting is not solely to defend freedom of association. Apologies to any libertarians out there who were hoping for a full defense that Stutzman should be able serve whomever she wants. But this is an amicus brief for a court case relying on existing precedents.
Rather, they are arguing that what florists provide counts as an "expressive art" and therefore requiring Stutzman to provide her services in contradiction to her religious beliefs constitutes "compelled speech," and that's a big no-no. Shaprio explains:
The U.S. Supreme Court has long recognized that the First Amendment protects artistic as well as verbal expression, and that protection should likewise extend to floristry—even if it's not ideological and even if it's done for commercial purposes. The Supreme Court declared more than 70 years ago that "[i]f 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." West Virginia Board of Education v. Barnette (1943). And the Court ruled in Wooley v. Maynard—the 1977 "Live Free or Die" license-plate case out of New Hampshire—that forcing people to speak is just as unconstitutional as preventing or censoring speech.
The First Amendment "includes both the right to speak freely and the right to refrain from speaking at all" and the Supreme Court has never held that the compelled-speech doctrine is only applicable when an individual is forced to serve as a courier for the message of another (as in Wooley). Instead, the justices have said repeatedly that what the First Amendment protects is a "freedom of the individual mind," which the government violates whenever it tells a person what she must or must not say.
Forcing a florist to create a unique piece of art violates that freedom of mind. Moreover, unlike true cases of public accommodation, there are abundant opportunities to choose other florists in the same area.
You can read their full brief here.
So the challenge will be convincing the courts that what florists do is a form of expression, and that might be a fight. In the cases against bakers that refused to provide wedding cakes to gay couples, we've seen courts reject arguments that a cake itself is a form of expression. Any messages on cakes can separately be seen as speech, and thus we've seen court cases where bakers cannot be compelled to write things they find offensive. But the cake itself is not considered speech (Read here for further analysis).
Even if the court decides that flowers are a form of expression, don't necessarily count on a ruling supporting Stutzman. Most of us recognize photography as a protected form of free speech and expression, but New Mexico's Supreme Court upheld a decision that a photography studio couldn't refuse to shoot a lesbian couple's wedding under the state's public accommodation laws. The Supreme Court, in 2014, declined to take up the case. Shapiro expects that whoever loses the Stutzman case will also be petitioning the Supreme Court for review.