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Court should reject half-baked attempt to discriminate against gays | Commentary

The government has a compelling interest in prohibiting unjust discrimination by businesses, even if this means requiring businesses engaged in expressive work to provide services for same-sex couples.

Masterpiece Cakeshop owner Jack Phillips inside his store in Lakewood, Colo.
Masterpiece Cakeshop owner Jack Phillips inside his store in Lakewood, Colo.Read moreBrennan Linsley / Associated Press

May a religious Christian baker refuse to bake a wedding cake for a same-sex couple? That is the issue the Supreme Court will be considering on Tuesday.

To begin with, it's important to recognize that this issue arises only when there is an applicable law that prohibits businesses from discriminating against gays or lesbians. In many parts of the country, no such law exists, so bakers are free to discriminate against gay and lesbian customers, regardless of whether they're looking for a wedding cake, a birthday cake, or a loaf of bread.

Of course, the Supreme Court held in 2015 that the Constitution requires every state to allow same-sex couples to marry. But the Constitution only restrains only government actors, not private ones. Without laws forbidding discrimination by employers, landlords, and businesses, a gay man could get married on Sunday, then be legally fired from work on Monday, booted out of his apartment on Tuesday, and denied service at a restaurant on Wednesday.

The baker in the case before the Supreme Court, Jack Phillips, lives in Colorado, which does have a state law that prohibits businesses from discriminating based on sexual orientation. After a same-sex couple complained to the Colorado Civil Rights Commission that Phillips had refused their request for a wedding cake, the commission ordered Phillips to make wedding cakes either for all couples or no couples.

You might think that this case is primarily about the baker's religious liberty. After all, the First Amendment provides that government shall make no law "prohibiting the free exercise" of religion.

But in a 1990 decision by conservative Justice Antonin Scalia, the Supreme Court held that religious objectors have no constitutional right to be exempted from generally applicable laws that are not targeted at religious practice. In other words, a law forbidding the use of peyote for religious rituals would be unconstitutional. But a general law forbidding the use of peyote by everyone is constitutional, even if it prevents Native Americans from using peyote for religious purposes.

Since the Colorado nondiscrimination law applies to businesses generally and is not targeted at religiously based acts of discrimination, the Constitution does not require the government to exempt Phillips' business from the law even if it burdens his religious practice. And, unlike many states, Colorado has not enacted a Religious Freedom Restoration Act, which could have exempted Phillips from a generally applicable law.

Given his weak religious liberty argument, Phillips' primary argument is instead based on freedom of speech.

But how is being forced to bake a wedding cake a free-speech issue?

It's not as far-fetched as it sounds.

Essentially, Phillips is saying that the way he decorates his cakes is expressive, particularly wedding cakes uniquely designed for each couple. Phillips contends that forcing him to make wedding cakes for same-sex couples is forcing him to celebrate these unions, a message he does not wish to convey.

First Amendment precedent arguably supports Phillips. Artwork is protected by the First Amendment. For example, the government may not suppress Diego Rivera's paintings because they portray the oppression of workers or stop the public display of Robert Mapplethorpe's homoerotic photographs. Phillips' artwork should similarly be protected, even if it's edible.

In addition, the Supreme Court has repeatedly said that forcing people to speak is just as offensive as forbidding them to speak. The First Amendment, the court has insisted, protects "both the right to speak freely and the right to refrain from speaking at all."

Yet, even if Phillips' argument is plausible, it should still be rejected by the Supreme Court.

While the government may not ordinarily compel people to speak, it may do so when there is a sufficiently important reason. Indeed, a federal judge only recently ordered tobacco companies to pay for advertisements that starkly describe the hazards of smoking. Surely, the companies didn't want to express this message, but the judge found that the ads were necessary to correct for decades of misleading tobacco company ads and to protect public health.

Similarly, the government has a compelling interest in prohibiting unjust discrimination by businesses, even if this means requiring businesses engaged in expressive work to provide services for same-sex couples.

Consider this argument from a broader vantage point. Should restaurants, hotels, and theaters should be able to discriminate against African American, Jews, or people of Irish, Polish, or any other descent merely because the owners say that serving these groups violates their religion? Such arguments have been tried in the past, but the Supreme Court has repeatedly rejected them because of the government's compelling interest in combating discrimination.

The court should reach the same conclusion in Phillips' case. Notwithstanding his faith, it's doubtful that our society would permit him to deny service to a Catholic couple or an interracial couple, including the recently engaged Prince Harry and Meghan Markle. Why should the result be any different for same-sex couples?

Who knows? Maybe if Phillips were forced to discuss the cake's design with a same-sex couple about the design of their cake, he might discover that the partners were merely two people in love.

Alan Garfield is a professor at Widener University School of Law.