This case has been winding through the state courts for years. Way back in 2012, Hands On Originals refused to make T-shirts for a gay pride event in Lexington because the owner had a religious objection with printing anything with a pro-gay message. The city's public accommodation ordinances prohibit discrimination on the basis of sexual orientation, and the Lexington-Urban County Rights Commission ruled that the shop had violated this law.
As a matter of law, the commission was completely wrong. Forcing a T-shirt maker to produce a message and particular images for a customer is a clear and extremely obvious example of compelled speech.
Lower court rulings in Kentucky have already made it clear that antidiscrimination laws cannot be used to force a T-shirt company to print messages or symbols it finds offensive or disagree with. This is not a case about discriminating against gay people. It's a case where the government is trying to force a private business to distribute a message against its will.
Do not be surprised when the commission loses this case and loses badly. During the oral arguments yesterday for Masterpiece Bakeshop v. Colorado Civil Rights Commission, the justices spent much of the time debating and analyzing hypotheticals about whether cakes themselves are artistic expressions and therefore "speech." They discussed whether Colorado could force a baker to include a rainbow or a cross on a cake regardless of his or her feelings about such symbols.
Colorado had previously determined that a bakery could refuse to write on a cake Bible passages the bakers found to be offensive, so clearly even Colorado believes there were limits to what the government can compel bakers to make.
Even the justices who seem most inclined to rule against Masterpiece Cakeshop yesterday (by which I mean the more liberal justices, such as Ruth Bader-Ginsburg and Sonia Sotomayor) were clearly concerned with crafting a decision that protects people from being compelled to communicate a message they find offensive. The justices all recognized that the Masterpiece case is not merely about a business refusing to serve gay people; it was also a case about compelled speech and artistic expression.
Now, whether they'll decide that creationg a wedding cake is an act of artistic expression is very much up in the air. Yesterday's oral arguments, in my eyes, didn't give a solid indication of how the court will ultimately rule. And as Reason's Stephanie Slade (who attended the hearing) wrote yesterday, the ruling may well be very narrow and tailored to avoid establishing a broad precedent.
But in the Kentucky case, the precedents are already there: The government cannot use antidiscrimination laws to force a T-shirt shop to print messages it finds offensive. I would be absolutely shocked if the shop lost this case.
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