Wyoming Creative Professionals Join Amicus

Gallons of ink have already been spilled discussing the case of Masterpiece Cakeshop v. Colorado Civil Right Commission. Jack Phillips, the owner of Masterpiece, declined to design a cake for an occasion that he could not celebrate. The Colorado Civil Rights Commission is charging that he did not decline because of the occasion, but because of the customers. The U.S. Supreme Court heard oral arguments on Tuesday, Dec. 5.

In addition to the arguments presented by the two sides of the case, there have been no fewer than 95 “Friend of the Court” briefs (Amici Curiae) filed by interested parties. One of these Amici was filed by 479 creative professionals from across the nation, including me and four others from Wyoming. Readers of the Uinta County Herald will also be interested to know that Bethany Lange, one of our recent reporters also signed on to the brief from her new home in Indiana.

While much of the analysis of Phillips’ case concentrates on his right to religious liberty, the “Creative Professionals” brief is primarily interested in free speech issues. As Justice Anthony Kennedy was writing his opinion for the majority in the Obergefell v. Hodges case that created a “Constitutional right” to same-sex “marriage,” he faced serious concern that this absolutist position would strip the freedom of speech from anyone who dissented.

Therefore, in his majority opinion, he sought to calm these fears with a strong statement, “that religions, and those who adhere to religious doctrines, may continue to advocate with the upmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned.” It’s hard to argue with that statement. It proclaims the right of all adherents of religion to continue advocating their doctrine.

Kennedy went even further. He allowed for both “disagree[ment]” and “open and searching debate,” also for non-religious reasons. After all, the right to free speech is not only for theological debates, but for scientific and philosophical debates as well. Everyone seeking truth in any discipline was assured by Kennedy that his ability to speak freely on the matter of marriage would not be curtailed.

Creative professionals of every variety took heart. Since the founding of our nation, precedent after Supreme Court precedent has established that free speech protections include also every conceivable form of art. Artists express themselves in a variety of ways. Painters, sculptors, architects, mimes, bloggers, florists, authors, bakers, clothiers, musicians, web designers, and more, all engage in conduct that is expressive without ever moving their lips. All of it is protected as “speech” under the U.S. Constitution.

So, what happened? Now, Jack Phillips stands before the court, hat in hand, pleading with it to return his ability to create wedding cakes of his choosing. Isn’t cake artistry included in this list anymore? When the Colorado Commission on Civil Rights threatened fines and the loss of his business license unless he designed a certain kind of cake, is that compelled speech? Isn’t that forbidden by the U.S. Constitution?

“The Colorado Court of Appeals rejected Jack Phillips’ compelled speech claim, finding ‘the compelled conduct here is not expressive’” (p. 4). The Commission knows full well that it cannot compel speech or any kind of expression under the Constitution. So, to force Phillips to make a cake, it must deny that it is “expressive,” and therefore, is not free.

To do this, it changed the subject. For the Commission, as soon as Phillips opened his doors to the public, his art became pure commerce. "In focusing on the commercial business of a pastry shop, instead of the art involved in creating a specifically designed wedding cake, the state court did not account for the actual speech prone to compulsion in this cause" (p. 6).

This is the sleight of hand that made creative professionals all over America come together to write an Amicus. Colorado’s Commission seems to hold that you can only be an artist if you don’t take any money for your creations. But as soon as you take money for your work, the state gets to tell you what to create, when and how.

Colorado is not unique in this position. In similar cases from Arlene’s Flowers in Washington, to Elane Photography in New Mexico, to Melissa’s Sweet Cakes in Oregon, the state’s prosecution of shop owners under “discrimination” laws depends on the very same legal assertion: art is no longer art when it is sold for money. As New Mexico’s court put it, “While photography may be expressive, the operation of a photography business is not.”

Our Amicus Brief summarizes: "The striking similarity in these three separate state court decisions is enough to suggest a pattern. With each court acting as though the relevant “speech” is the desire to avoid doing business with select individuals, they all ignored the existence of the underlying art and its forced expression. These states make light of the dilemma that creative professionals face – depicting their distinct creations of art as nothing more than commercial transactions – in requiring them to speak in a way that conflicts with their consciences and strips them of their First Amendment freedoms.”

The compelled speech at issue here, is not “doing business with select individuals.” Every one of the artists in question has always served all customers regardless of sexual orientation. The speech at issue is the artist being compelled by the state to say that “same-sex marriage should be condoned.” Exactly what Justice Kennedy promised would never happen.

If the state can compel a message simply because money is changing hands, whose speech can it NOT compel? The most public cases currently are focused on artists who work on Main Street, having physical shops with doors that open out on the street.

But the same law that brought Phillips to the Supreme Court, Colorado’s Anti-Discrimination Act (CADA), also requires Lorie Smith, a website designer, either to “promote same-sex marriage or remain silent.” If she uses her online art to “continue to advocate with the upmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” as Justice Kennedy assured us she could, she will “suffer fines, intrusive investigations, and Orwellian re-education.” (p. 13).

The Brief from 479 Creative Professionals summarizes: “Given the protection afforded artistic expression, creative professionals suffer a direct infringement on their fundamental rights when the government compels them to create art promoting a particular viewpoint or message. As illustrated by the stories herein of people actually affected, the coercion can be palpable: if creative professionals in the wedding industry decline to promote same-sex marriage through their art, they face crippling fines, loss of business, government re-education, and even jail time. It is difficult to imagine a more onerous and effectual compulsion to speak.”

I believe Justice Kennedy was sincere when he wrote the Obergefell decision. I believe he was fully persuaded that the court could create a Constitutional right to same -sex “marriage” while simultaneously protecting the freedom of all Americans to speak in disagreement.

Now this question has come back to the very same court, and once again it appears that Kennedy will be the deciding vote. It will be interesting to see whether he is able to draft a decision that defends the solemn assurances that he gave just two years ago.