Supreme Court Commentaries
LGBT rights; gay marriage; First Amendment; expressive conduct
Constitutional Law | Supreme Court of the United States
Masterpiece Cakeshop v. Colorado Civil Rights Commission is the most important same-sex rights case since Obergefell v. Hodges and will determine if businesses and individuals have a First Amendment right to refuse serving gay weddings against their conscience. In this case, Jack Phillips, owner of Masterpiece Cakeshop, refused to create a custom cake for Charlie Craig and David Mullins to celebrate their wedding because it was against his Christian beliefs. The Supreme Court will decide whether the First Amendment gave Phillips this right of refusal or whether Colorado’s anti-discrimination laws will compel him to serve same-sex weddings. This commentary argues that Phillips’ refusal of Craig and Mullins was not protected by the First Amendment here because he did not know what kind of cake the couple wanted. However, because certain cakes can be expressive and contain speech, the lower court’s remedy is overbroad and may impermissibly compel Phillips to engage in protected speech. To prevent this, the Court should require in future cases that courts analyze similar cases under its established compelled speech and expressive conduct frameworks.
Andrew Jensen, Compelled Speech, Expressive Conduct, and Wedding Cakes: A Commentary on Masterpiece Cakeshop v. Colorado Civil Rights Commission, 13 Duke Journal of Constitutional Law & Public Policy Sidebar 147-162 (2018)