The James Wilson Foundation on Natural Rights and the American Founding

Free Speech and Religious Liberty at the Supreme Court

Jack Phillips, Barronelle Stutzman, Blaine Adamson, and the Larsen Family: each are blessed with extraordinary creativity and faith along with success in their private businesses. Jack bakes personalized cakes, Barronelle designs unique floral arrangements, Blaine prints custom shirts, and the Larsen’s videography captures the intimate stories of others. Each take pride in their faith and their craft. This commitment to their faith has placed them in the center of the conflict between the natural and constitutional rights of religious freedom and free speech, and recent LGBTQ civil rights legislation.

When Jack Phillips declined to design a custom wedding cake for a same-sex wedding, offering instead to provide a pre-designed cake or baked goods, he never anticipated the legal battle that would ensue. For Jack, a wedding cake is more than dessert: it is an integral part of the marriage ceremony, which symbolizes the newly formed commitment between the couple and God. As a Christian artist, Jack abstains from customizing same-sex wedding cakes – just as he abstains from creating Halloween, bachelorette/bachelor, divorce, or racist cakes – as the messages they convey contradict his religious beliefs. Likewise, when Barronelle’s friend of ten years requested that she arrange the flowers for his wedding to his long-term boyfriend, she declined in deference to her religious conscience, but provided the information of three other florists. Blaine faced a similar dilemma in 2012 when an LGBTQ organization requested a message for print that contradicted his sincere beliefs. Like Jack and Barronelle, Blaine declined the request and referred his customer to another print shop. For these decisions, Jack, Blaine, and Barronelle have been sued personally and professionally for discrimination alongside criminal cases brought by their State governments.

Each of the artists are at different stages in their cases. The Kentucky Court of Appeals ruled in Blaine’s favor as his participation in printing messages was held as speech and protected by the First Amendment. Currently, the Larsens are challenging Minnesota’s mandate to service all weddings regardless of moral objection through a pre-enforcement case. Should they lose and continue to decline same-sex wedding commissions, they will be met with triple the normal fines for non-participation and face up to ninety days in jail. In Colorado, the court ignored Jack’s rights of religious freedom and free speech, ordering him to attend “re-education training,” file quarterly compliance reports for two years, and to either service all weddings alike or cease to sell wedding cakes. In keeping with his religious convictions, Jack chose the latter, sacrificing 40% of his annual revenue. Similarly, Barronelle’s appeal, grounded in her right to free speech, was rejected in Washington. Should the Supreme Court decline to hear her appeal, 72-year-old Barronelle will be required to pay more than a million dollars in penalties and legal fees; leaving her financially destitute.

Jack’s and Barronelle’s actions were motivated by personal convictions and a religious understanding of the nature of marriage, not disdain for same-sex relationships. Yet the Colorado and Washington courts seem determined to deny these business owners their rights of free expression. The reasoning of these state courts: compelled speech becomes conduct. By redefining Jack’s art as conduct, claiming that the artist loses ownership of the message when produced in compliance with the law, the Court has barred Jack from a free speech defense. However, such a claim is inconsistent with the principles at the foundation of our law: freedom from state coercion and responsible liberties of action and deed. Moreover, the Colorado courts have demonstrated preferential treatment toward secular shops in parallel cases. When secular cake shops were approached to design cakes with messages critical of same-sex marriages in Colorado, their right to deny service was upheld by the court. These cases demonstrate that, should there be competition between natural rights of religious freedom and free speech and a state’s preferred conduct, the Courts will coerce conduct.

The Alliance Defending Freedom, Jack’s and Barronelle’s legal counsel, aims to make it clear: compelling the sale of art violates free speech. If the Supreme Court, in Jack’s case, adopts a ruling which, in a contradictory manner, compels speech and silences dissent, the result will be a jurisprudence in conflict with itself. The outcome of these cases could establish a new precedent for free exercise rights – whether that will be to protect them or to place them on a path toward irrelevance them remains to be seen. Jack’s case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, likely will be heard by the Supreme Court by the end of the year, with a decision by the end of June 2018.

Video of a panel featuring Jack, Barronelle, Blaine, and the Larsens may be found below, courtesy of the Heritage Foundation.

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790