gay marriage: Do Cakes And Floral Arrangements Raise First Amendment Issues?

https://www.forbes.com/sites/georgel.../#89f069e4704c

Do Cakes And Floral Arrangements Raise First Amendment Issues?

By George Leef, Contributor
I write on the damage big government does, especially to education.
Opinions expressed by Forbes Contributors are their own.

Two heated cases that are before the Supreme Court are Masterpiece Cakeshop (which the Court agreed to hear last June) and Arlene’s Flowers (for which the petition for certiorari is still pending). In both, the owners face punishment for having declined to do business with customers who wanted their services.

In the former, the owner of a cake shop was asked to bake and decorate a cake for the wedding of a gay couple. The owner, Jack Phillips, who is a committed Christian and believes that marriage can only be between a man and a woman, said that he would not enter into a contract to create a cake for a gay wedding. The angry couple filed charges with the Colorado Civil Rights Commission. It ruled that Phillips had violated the law, and ordered him to design cakes for same-sex wedding, go through a “re-education program,” and file quarterly compliance reports with the commission for two years, showing his obedience to the state.

In the latter, the circumstances were almost identical, except that instead of a wedding cake, it was flowers. Baronelle Stutzman was asked to prepare the floral arrangements for a gay wedding and she declined to do so because she believes that marriage can only be between a man and a woman.

For having politely said “No, thanks” to the offer to contract for wedding flowers (she referred the men to other florists who would do the job), she was hauled into court for violating Washington state’s anti-discrimination law. She lost and was ordered by the Washington Supreme Court to pay the legal costs incurred by the American Civil Liberties Union in their suit against her. (Much of the money needed to pay the ACLU had been raised on GoFundMe before politically correct or politically intimidated people at GoFundMe took down the page on the grounds that it was a “violation of terms.” This Daily Signal piece covers the story.)

Now the Supreme Court will decide if the First Amendment protects people like Jack Phillips and Baronelle Stutzman against being punished for declining to use their artistic talents on behalf of same-sex weddings.

The arguments before the Supreme Court (and the lower courts) cast the disputes as raising free speech issues. By compelling these business owners to decorate a wedding cake and arrange wedding flowers, isn’t the government in effect forcing them to speak against their wills? The Court has held that the First Amendment protects people against being compelled to speak just as much as it protects them against governmental suppression of their speech, so shouldn’t the cases be seen as falling under the Court’s First Amendment precedents?

In its brief for Phillips, Alliance Defending Freedom attorneys so argue. “The state compels Phillips to design and create custom wedding cakes honoring same-sex marriages despite conceding that he employs ‘considerable skill and artistry’ in doing so and that – at least in some instances – his work constitutes protected speech.”

It is a stretch – not necessarily an illegitimate one, but still a stretch – to get from “Congress shall make no law abridging the freedom of speech” to concluding that a state may not punish a baker or flower arranger for choosing not to bake or design upon every request. These are free speech cases like Pluto is (or isn’t) a planet – at a great distance, dimly, questionably.

What these cases obviously are, are contract cases. The offeror and offeree did not come to terms and yet the former wants to have the state punish the latter. We litigate them under the First Amendment because the Court’s free speech jurisprudence has been so expansive and its contract jurisprudence has been so constricted.

The Founders included in the Constitution (Article I, Section 10) a prohibition against the states enacting any law that would “impair the obligation of contracts.” Had the Supreme Court treated that language expansively (as it has the Free Speech clause), we would have a capacious constitutional umbrella protecting the sanctity of contracts and the liberty to enter into or decline to enter into them as we see fit.

Alas, rather than giving the Contract Clause an expansive reading, the Court has done just the opposite. It has shriveled it into insignificance by refusing to apply it in cases where it obviously did apply, such as the mortgage foreclosure moratorium case Blaisdell v. Home Building and Loan.

(Readers who are interested in the sad history of the Contract Clause should consult Professor James W. Ely’s The Contract Clause: A Constitutional History, which I wrote about in this piece.)

It’s unfortunate that the drafters of the Constitution never foresaw the prospect of people being forced into contracts against their will and therefore included no language to guard against that.

But what about the Fourteenth Amendment?

More than a century ago, the Court regarded contractual freedom as part of the liberty protected against state action under that amendment in Lochner v. New York, but the New Deal Court veered sharply away from protecting contractual freedom. In Nebbia v. New York, for example, the majority saw nothing amiss in the state punishing a businessman for charging a customer too low a price.

Ever since, the Court has allowed the sphere of contractual freedom to shrink to the point where almost any asserted reason for interfering with it is sufficient.

Cases like Masterpiece Cakeshop and Arlene’s Flowers would never arise if the Court had treated freedom of contract on a par with freedom of speech. Sadly, the justices have chosen to regard the latter as “fundamental” while treating the former as of scant importance -- like a barely tolerated stepchild.

A society where the government can censor free speech or force people to speak contrary to their beliefs is a society destined for misery, but so is one where the government can compel people to enter into contracts they don’t want, prevent people from making contracts they do want, or decree that contracts that have been made must be changed. Nothing is gained by encouraging lawsuits by people disappointed because someone else didn't want to deal with them.

Let us hope that the Court rules in favor of Masterpiece Cakeshop, Arlene’s Flowers, and similar businesses that have been targeted because their owners hold the beliefs they do. It won’t do any harm to stretch the First Amendment a bit further to shield businesses from being punished merely because their owners declined to contract with certain individuals. But it would be better if we didn’t have to shoehorn cases that center on contractual freedom into other constitutional guarantees.

looks like both cases deal with 1st amendment and article 1 section 10 contract issues.

I certainly hope the baker & floralist win.

Yeah fake god creates lots of issues of importance. Like cake baking and flowers for homos. If you bake that cake god is gonna get you.

Yeah fake god creates lots of issues of importance. Like cake baking and flowers for homos. If you bake that cake god is gonna get you. Originally Posted by Trey

But you're just hunky-dory with "fake" biology, aren't you, you lib-retarded moron?

When the government is allowed to Pick and choose who gets to do business with them based on race, gender, and such why can the government insist that you cannot?

When the government is allowed to Pick and choose who gets to do business with them based on race, gender, and such why can the government insist that you cannot? Originally Posted by The2Dogs

this was the point the writer made in the article. it was highlighted in red.

A society where the government can censor free speech or force people to speak contrary to their beliefs is a society destined for misery, but so is one where the government can compel people to enter into contracts they don’t want, prevent people from making contracts they do want, or decree that contracts that have been made must be changed. Nothing is gained by encouraging lawsuits by people disappointed because someone else didn't want to deal with them.

Yeah fake god creates lots of issues of importance. Like cake baking and flowers for homos. If you bake that cake god is gonna get you. Originally Posted by Trey

its a stupid way to say that. fake god or not, certain beliefs need to be respected whether we like it or not.

This is NOT a 1st ammendment against 1st ammendment issue.

Racial discrimination in restaurants was was rightly ended in 1964 albeit by allowing an over reaching use of the commerce clause. Just because it needed to be banned doesn't mean the way it was banned was correct.


Recent cases have restricted the commerce clause's reach.

I don't think the interstate commerce argument will hold water. We shall see.

I think the dilemma for the court will be saying the man had a right to refuse service to gays because of his 1st ammendment rights without saying he would also be able to do so because of race if he wished.

That will open a can of smelly worms.

This is NOT a 1st ammendment against 1st ammendment issue.

Racial discrimination in restaurants was was rightly ended in 1964 albeit by allowing an over reaching use of the commerce clause. Just because it needed to be banned doesn't mean the way it was banned was correct.


Recent cases have restricted the commerce clause's reach.

I don't think the interstate commerce argument will hold water. We shall see.

I think the dilemma for the court will be saying the man had a right to refuse service to gays because of his 1st ammendment rights without saying he would also be able to do so because of race if he wished.

That will open a can of smelly worms. Originally Posted by grean

This will be far messier than the people on both sides of this believe.

I don't really care if a baker or florist can deny selling me something, but I care a lot when an ambulance or volunteer fire department can.

I do not know how they will rule, but sadly either way it will have a lot of bad unintended consequences coming along with it.

Can a baker refuse to sell someone bread because they know the person is gay, even if it has nothing to do with gay marriage? Can they somehow argue that it is implicit support of their gayness that they oppose?

If a person goes and buys flowers, can the florist insist they sign a form saying the flowers will not be used at a gay wedding--even if that was not brought up by the customer?

Can a butcher refuse to sell lamb or goat to an obviously muslim person and claim they have a religious objection to supporting someone who might support ISIS?

If the baker loses this case, can a straight couple be turned down when asking for wording on a cake that the baker finds blatantly objectionable?

These sound far fetched, but depending how this case goes I suspect we will see some of them. Litigation is far out of control.

Do Cakes And Floral Arrangements Raise First Amendment Issues? Originally Posted by dilbert firestorm

If anything FORCING or compelling a business to do something agianst its will, should be considered Slavery..

It ruled that Phillips had violated the law, and ordered him to design cakes for same-sex wedding, go through a “re-education program,” and file quarterly compliance reports with the commission for two years, showing his obedience to the state. Originally Posted by dilbert firestorm

Are not re=education camps a Communist invention, for INDOCTRINATING and compelling people to follow the 'party line'?

(Much of the money needed to pay the ACLU had been raised on GoFundMe before politically correct or politically intimidated people at GoFundMe took down the page on the grounds that it was a “violation of terms.” This Daily Signal piece covers the story.) Originally Posted by dilbert firestorm

THIS IS why i refus to use Go-fund me... CAUSE they are too spineles sand willing to cave into the libtards..

The Court has held that the First Amendment protects people against being compelled to speak just as much as it protects them against governmental suppression of their speech, so shouldn’t the cases be seen as falling under the Court’s First Amendment precedents? Originally Posted by dilbert firestorm

If anythiing it should fall under the ANTI-Slavery amendment.

I certainly hope the baker & floralist win. Originally Posted by dilbert firestorm

So do i!

This is NOT a 1st ammendment against 1st ammendment issue.

Racial discrimination in restaurants was was rightly ended in 1964 albeit by allowing an over reaching use of the commerce clause. Just because it needed to be banned doesn't mean the way it was banned was correct.


Recent cases have restricted the commerce clause's reach.

I don't think the interstate commerce argument will hold water. We shall see.

I think the dilemma for the court will be saying the man had a right to refuse service to gays because of his 1st ammendment rights without saying he would also be able to do so because of race if he wished.

That will open a can of smelly worms. Originally Posted by grean

So do you feel ANY business should be able to get FORCED BY THE STATE to serve anyone? IN that case a Jewish bakery should be forced to serve bacon. A Muslim mosque forced to serve an atheist wedding.

If anything FORCING or compelling a business to do something agianst its will, should be considered Slavery..



Are not re=education camps a Communist invention, for INDOCTRINATING and compelling people to follow the 'party line'?



THIS IS why i refus to use Go-fund me... CAUSE they are too spineles sand willing to cave into the libtards..



If anythiing it should fall under the ANTI-Slavery amendment.



So do i!




So do you feel ANY business should be able to get FORCED BY THE STATE to serve anyone? IN that case a Jewish bakery should be forced to serve bacon. A Muslim mosque forced to serve an atheist wedding. Originally Posted by garhkal

Well a Jewish bakery wouldn't serve bacon to anyone to begin with, I imagine. I believe the baker opted to suspend his entire cake business segment when given a similar ultimatum, serve all or no one.

What would a muslim mosque serve at an aithiest? I'm not sure I follow where your going with this one.

I haver heard that many priests and pastors have declined to preside over weddings for various religious reasons.

The pastors & priests get a fee for a service just like the baker and yet they haven't gotten sued.

I'm not sure how this is different. While I hate discrimination, I don't believe the way the govt went about making it illegal was the right way.


I also don't believe in hate crime. We should punish crime severely no matter the motive of the charged individual.

I imagine society today wouldn't tolerate a restaurant that discriminared based on race today.
There I think the restaurant would be boycotted and forced out of business.

Discrimination is a human trait that comes from the need to survive.
The commerce clause has been one of the instruments of government overreach for far to o long.
Our government discriminates.

Why are people that believe differently from others discriminated against?
Why should the government force a person to do things that are against their beliefs, religious or otherwise?

This is one of the prime reasons that we are not a democracy. Our founders did not want the rule a a simple majority be used to force the rest to comply with their wishes. Our government was not created to solve the problems between people or to supply the needs of the people. What we have now is not the government that was set forth but a corruption of the government it was intended to be, small and extremely limited.

I really didn't read the complete post. Way too long.
Glad to see that there is somebody with a little common sense.
I did make my point in much less words.

OH, I discriminate in my business. There are people that I will not do work for and it usually because they do not want to pay what I want to charge. That and they want to negotiate the price after the work is done.

This is NOT a 1st ammendment against 1st ammendment issue.

Racial discrimination in restaurants was was rightly ended in 1964 albeit by allowing an over reaching use of the commerce clause. Just because it needed to be banned doesn't mean the way it was banned was correct.

Recent cases have restricted the commerce clause's reach.

I don't think the interstate commerce argument will hold water. We shall see.

I think the dilemma for the court will be saying the man had a right to refuse service to gays because of his 1st amendment rights without saying he would also be able to do so because of race if he wished.

That will open a can of smelly worms. Originally Posted by grean

this has nothing to do with the interstate commerce clause, but a article 1 section 10 contract issue as the article points out. the 1st amendment is playing a major role. the two issues are interwined with each other however.