Thursday, December 14, 2017

A Contrarian Note On Wedding Cake Case, The Baker Who Wouldn’t

12/14/17

Does this make sense?

I’ve had some vigorous exchanges with a few people here, there and everywhere on the wedding cake case.

While I’m totally for gay marriage and the grant to gay couples and individuals of all equal rights—“grant” may not be the right verb; “recognize” is better—I’m sympathetic to the argument based on compelled speech, assuming baking a fancy, symbolic and specified wedding cake can be legally likened to the expression inherent in artistry. 

Not otherwise.

The most troubling argument to me has been the question of what if the baker for religious reasons, sincerely but perversely held, is against interracial marriage.

I struggled with it and offered a few answers that didn’t sit well with me.

But I had last night a good conversation with my younger lawyer daughter, who gives and takes good arguments equally well. And it came to me.

I think.

No dancing around the application of strict scrutiny or hiving off racial issues for special consideration: no, I think the issue has to be met head on. And the answer I think—I stress “I think” because it’s only a thought—is that compelled speech must apply to the religiously based animus against interracial marriage it that’s what is sincerely and deeply believed. 

Compelled speech, which is as strong and embracing as the 1st Amendment itself, can’t be splintered into the convictions we can live with and the ones we can’t. If Nazis can march under their rights of assembly and unbridled expression, short of incitement, then bakers oughtn’t be compelled to create against their convictions, if they come within the ambit of artists who can’t be compelled to act against their convictions.

Nobody made that argument in oral argument before SCOTUS and I doubt it was briefed. But I do believe and think that it is the principled answer to the troubling question of what to do if race is at the bottom of the refusal to provide service.

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