The Volokh Conspiracy
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From yesterday's order in Dep't of Fair Emp. & Hous. v. Miller:
A wedding cake is not just cake in Free Speech analysis. It is an artistic expression by the person making it that is to be used traditionally as centerpiece in the celebration of marriage. There could not be greater form of expressive conduct. Here, Rodriguez—Del Rios plan to engage in speech. They plan celebration to declare the validity of their marital union and their enduring love for one another. The State asks this court to compel Miller against her will and religion to allow her artistic expression in celebration of marriage to be co-opted to promote the message desired by same-sex marital partners, and with which Miller disagrees….
The court cannot retreat from protecting the Free Speech right implicated in this case based upon the specter of factual scenarios not before it. SmalI-minded bigots will find no recourse in committing discriminatory acts, expecting to be sheltered from Unruh Act prohibitions by false cry of Free Speech. No court evaluates Free Speech rights against the interest of the State in enforcing public access laws in vacuum, without regard to circumstances, history, culture, social norms, and the application of common sense. Here, Miller's desire to express through her wedding cakes that marriage is sacramental commitment between man and woman that should be celebrated, while she will not express the same sentiment toward same-sex unions, is not trivial, arbitrary, nonsensical, or outrageous. Miller is expressing belief that is part of the orthodox doctrines of all three world Abrahamic religions, if not also part of the orthodox beliefs of Hinduism and major sects of Buddhism. That Miller's expression of her beliefs is entitled to protection is affirmed in the opinion ofJustice Kennedy in Obergefell v. Hodges (2015) wherein the Court established that same-sex marriages are entitled to Equal Protection. Therein, the Court noted: "[f]inally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered."
Furthermore, here the State minimizes the fact that Miller has provided for an alternative means for potential customers to receive the product they desire through the services of another talented baker who does not share Miller's belief. Miller is not the only wedding cake creator in Bakersfield.
The fact that Rodriguez-Del Rios feel they will suffer indignity from Miller's choice is not sufficient to deny constitutional protection. Hurley [the case uphold the right of St. Patrick's Day Parade organizers to exclude pro-gay-rights speech -EV] established that the State's interest in eliminating dignitary harms is not compelling where, as here, the cause of the harm is another person's decision not to engage in expression. The Court there recognized that "the point of all speech protection … is to shield just those choices of content that in someone's eyes are … hurtful." An interest in preventing dignitary harms thus is not compelling basis for infringing free speech. (See Texas v. Johnson (1989); see also Hustler Magazine, Inc. v. Falwell (1988).)
I don't think this analysis is correct, for reasons Dale and I gave in our amicus brief: While creating photographs, videos, and text would be constitutionally protected speech (so we support the right of, for instance, photographers not to photograph same-sex weddings), creating wedding cakes with no text or symbolic design on them is not. (In this case, the couple selected a preexisting design, and "did not want or request any written words or messages on the cake.") Still, I thought the opinion was noteworthy.
By the way, I take it that it's clear that the Free Speech Clause issue can't turn on whether Miller's belief "is part of the orthodox doctrines" of many religions, or whether it's instead "trivial, arbitrary, nonsensical, or outrageous"—the Free Speech Clause protects views regardless of whether they express views that are seen as orthodox, outrageous, or nonsensical.