We didn’t make this up: a proud mom ordered a cake to celebrate her son’s graduation “Summa Cum Laude.” The bakery took it upon itself to eliminate the obscene word “cum,” and replace it with dashes, as shown above.
Can’t be too careful these days. A celebratory cake was the subject of the just-now-decided Supreme Court case Masterpiece Cakeshop where a Christian Evangelical baker declined to create a wedding cake for a gay marriage ceremony, while offering to provide the couple with any other kind of baked goods. The Colorado Civil Rights Commission called the baker’s religious scruples “a despicable piece of rhetoric” of the sort used to justify slavery and the Holocaust, and enjoined him from making any wedding cakes unless he agreed to provide them for same-sex marriages. As a result, his mom-and-pop bakery lost nearly half of its business.
The Supreme Court decision cannily focuses on the Commission’s hostility to religion while ducking the issue of compelled speech. Justice Kennedy, duly invoking the dignity, respect etc. due to same-sex couples, nevertheless concluded that sneering at the baker’s beliefs “was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”
It’s hard to know what this limited decision means for the baker. Presumably any same-sex couple can request a wedding cake and sue him again if he refuses, this time in front of a Commission that’s learned to be more politic in its language.
While not sharing the baker’s beliefs, we sympathize, knowing what it’s like to be hounded by a junta of “the offended.” Justice Thomas’s concurrence, recognizing that the right to speak entails the right not to be compelled to express unwanted ideas, says it all (citations omitted):
States cannot punish protected speech because some group finds it offensive, hurtful, stigmatic, unreasonable, or undignified. If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
A contrary rule would allow the government to stamp out virtually any speech at will. After all, much political and religious speech might be perceived as offensive to some. As the Court reiterates today, “it is not . . . the role of the State or its officials to prescribe what shall be offensive.” Indeed, if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection.
If the only reason a public accommodations law regulates speech is “to produce a society free of . . . biases” against the protected groups, that purpose is “decidedly fatal” to the law’s constitutionality, “for it amounts to nothing less than a proposal to limit speech in the service of orthodox expression.”
Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails. “A speech burden based on audience reactions is simply government hostility . . . in a different guise.”
Consider what Phillips [the baker] actually said to the individual respondents in this case. After sitting down with them for a consultation, Phillips told the couple, “I’ll make your birthday cakes, shower cakes, sell you cookies and brownies, I just don’t make cakes for same-sex weddings.” It is hard to see how this statement stigmatizes gays and lesbians more than blocking them from marching in a city parade, dismissing them from the Boy Scouts, or subjecting them to signs that say “God Hates Fags”—all of which this Court has deemed protected by the First Amendment. . . .
Nor does the fact that this Court has now decided Obergefell v. Hodges somehow diminish Phillips’ right to free speech. “It is one thing . . . to conclude that the Constitution protects a right to same-sex marriage; it is something else to portray everyone who does not share [that view] as bigoted and unentitled to express a different view.”
This Court is not an authority on matters of conscience, and its decisions can (and often should) be criticized. The First Amendment gives individuals the right to disagree about the correctness of Obergefell and the morality of same-sex marriage. Obergefell itself emphasized that the traditional understanding of marriage “long has been held—and continues to be held— in good faith by reasonable and sincere people here and throughout the world.” If Phillips’ continued adherence to that understanding makes him a minority after Obergefell, that is all the more reason to insist that his speech be protected. “T]he fact that [the social acceptance of homosexuality] may be embraced and advocated by increasing numbers of people is all the more reason to protect the First Amendment rights of those who wish to voice a different view.”
— Masterpiece Cakeshop v. Colorado Civil Rights Commission (Thomas, J., concurring).