The New York Times recently carried an interesting article on the wedding-cake controversy that is now before the U.S. Supreme Court. The article pointed out that prominent lawyers who specialize in First Amendment cases are "vexed" by the controversy.
The facts of the case are simple: A Colorado bakeshop refused to create a wedding cake for a gay couple. The state charged the baker with unlawful discrimination. Those vexed lawyers are having trouble deciding whether the baker has a First Amendment right to refuse to create a wedding cake for the gay couple. Some of them say yes and some say no.
Floyd Abrams, who the Times calls the nation's most prominent First Amendment lawyer, at first leaned toward the baker, repelled by the notion that the state could require him to create some sort of artistic rendering that violated his conscience. But then he started leaning the other way, asking "Could a painter invite the public to his gallery at which he painted portraits of them for a fee but refused to paint black people?" Abrams finally came down on the side of the gay couple.
Eugene Volokh, who the Times describes as a "leading First Amendment scholar," sided with the gay couple as well. While photographers and painters have the First Amendment right to decide which commissions to take, Volokh says, it's different with bakers. A chef cannot claim a free speech right not to serve people at his restaurant, he said, no matter how beautiful his dishes look.
Ilya Shapiro, a lawyer with the Cato Institute, said that writers, singers, actors, and painters are entitled to First Amendment protection but not caterers and limousine drivers. Bakers, he said, are a close call because they are "close to the line." Shapiro has sided with the baker.
The legal controversy vexing all these great legal minds is a classic example of what happens when the courts compromise (i.e., abandon) the principles of freedom. When that happens, it produces situations where lawyers are "vexed" and end up doing their best to pound square legal pegs into round legal holes.
The fact is that the wedding cake controversy has nothing to do with free speech. Instead, the issue is all about private property and the right to discriminate.
Let's start with a simple example: the owner of a home. I think everyone would agree that he has the right to decide who comes into his home. He's the owner, after all. That's part of what private ownership is all about — the right to exclude others from coming onto his property.
Suppose the homeowner throws a party in which he excludes blacks, Jews, immigrants, and poor people. All of his 100 invited guests are rich white Americans.
Are there any First Amendment issues here? Would those lawyers in the wedding- cake controversy be vexed over whether the homeowner has the right to discriminate? Would they say that the issue turns on how "creative" the party is?