In December, the Court will hear argument in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. A cake baker claims that a Colorado civil rights law, which requires him, as a merchant serving the public, to provide his product on a nondiscriminatory basis to gay people for their weddings, unconstitutionally compels him to speak. A decision in favor of the cake baker would restrict the ability of California and California cities to enforce similar nondiscrimination laws.
President Trump’s appointee, Justice Gorsuch, likely provided the fourth vote to grant review in the case. The Trump Administration has filed an amicus brief arguing that the Court should interpret the Constitution in the way the baker suggests.
Recently, in the Take Care blog, Yale Law School Professor Robert Post reviews the Department of Justice’s brief in light of free speech doctrine. The DOJ’s key claim is that creating a cake should be constitutionally protected at the same level as core political speech. So, because the Constitution forbids the government to compel a child to engage in the expressive action of saluting the flag, the Court should interpret it to forbid the state to compel a custom cake baker to make a cake to be used at an “expressive” event, such as a gay wedding. Dean Post responds:
If heightened First Amendment scrutiny were to be triggered by the fact that a wedding is a “deeply expressive” event, all the innumerable commercial actors who participate in weddings—furniture rental companies, chauffeurs, caterers, tailors, flower arrangers, wedding planners—could raise First Amendment challenges to the application of antidiscrimination law. Ditto for all the many commercial actors who participate in the countless other “deeply expressive” events that populate the landscape of American society—funerals, births, schools, theaters, concerts, and so on.
Any such conclusion would … rip the guts out of any effort to establish equality in the commercial marketplace.”
You can read Professor Post’s full commentary on Take Care.