My Cato Institute colleagues (Sept. 6) and the U.S. Department of Justice (Sept. 7) have both weighed in with amicus briefs in the Supreme Court’s fall-term case of Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, supporting the principle that the First Amendment does not permit Colorado public accommodations law to force independent baker Jack Phillips to create a cake intended for a same-sex wedding in which he does not wish to participate.
Cato’s brief emphasizes the expressive significance of custom cake baking, which involves the creation of a unique work of art with symbolic and emotional elements (more from Ilya Shapiro and David McDonald).
The Department of Justice brief advances a similar argument and also argues that creative expression aside, the law must not force “participation in an expressive event” under First Amendment precedents such as Barnette v. West Virginia Board of Education (public school students may not be compelled to take part in Pledge of Allegiance, flag salutes, or similar ceremonies), absent a more compelling state interest than Colorado has shown here.
Both briefs distinguish custom cake making from other wedding services. Cato notes that some services (wedding photography, custom floral design) share elements of creative expression with custom cake baking, while many other services do not. DoJ says there is no First Amendment problem applying public accommodation law to hall or limo rental or to the sale of off-the-shelf cakes. Where a product is not custom made for a particular client or event, the law is dealing with a sale of goods, not conscripting an expressive service.
Neither Cato’s nor DoJ’s brief is grounded in a free exercise of religion argument, but would apply to refusals to deal whether grounded in religious belief or not. Earlier here and here. More: Erica Goldberg.