On Tuesday, the Supreme Court hears oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission — the case of the same-sex wedding cake and the baker who refused to make it. A state agency ruled that the baker, Jack Phillips, was in violation of Colorado's antidiscrimination laws, and decreed that if he wishes to create wedding cakes at all, he must create them for same-sex weddings too.
But Masterpiece Cakeshop is not about gay marriage. It's about compelled speech.
The Supreme Court settled the marriage issue in its landmark Obergefell decision in 2015. Gay and lesbian couples are free to marry anywhere in the United States, and government at every level now protects their right to do so. But can government require artists, designers, or other creative professionals to celebrate same-sex marriage through their work? Can it subject someone like Phillips — who will happily serve any customer but cannot in good conscience use his cake-design skills to communicate an endorsement of gay marriage — to prosecution, sanctions, or legal coercion?
Most Americans support same-sex marriage. A sizable minority does not. In Obergefell, the high court emphasized that dissent is entirely legitimate. "Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here," Justice Anthony Kennedy wrote in his majority opinion. While same-sex couples would no longer be barred from marrying, he added, nothing should impede the continuation of "an open and searching debate."
Were the justices serious about that? If so — if they truly don't want the legalization of same-sex weddings to become an excuse to persecute "decent and honorable" Americans who oppose gay marriage — they will use this case to say so. They'll reverse the decision of the Colorado courts, and uphold Phillips's right not to support a practice he believes is wrong.
For Kennedy in particular, this case offers an exquisite opportunity to uphold two cherished principles: first, that the benefits of marriage not be denied on the basis of sexual orientation, and second, that liberty is threatened most when government seeks to control thought or speech.
In America, the state cannot force citizens to express a certain point of view. In 1943, in one of its most famous decisions, the Supreme Court ruled that West Virginia schoolchildren could not be compelled to salute the flag: "If there is any fixed star in our constitutional constellation," Justice Robert Jackson declared, "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."
The rest:
http://www.jeffjacoby.com/20609/what-the-constitution-says-about-cakes
