The Case for Not Compelling Creative Expression

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The libertarian Cato Institute filed influential amicus briefs in support of overturning sodomy laws (in Lawrence, cited by Justice Kennedy in his opinion) and in favor of marriage equality (in Obergefell). In keeping with a principled commitment to individual rights and against unnecessary government coercion, Cato has now filed an amicus in favor of a baker who chose not to create a same-sex wedding cake.

13 Comments for “The Case for Not Compelling Creative Expression”

  1. posted by Tom Scharbach on

    I’m relieved to see that DOJ has abandoned the Free Exercise argument, instead focusing entirely on the Free Speech argument.

    The Free Exercise argument, absurd on its face, has never prevailed in any court, to my best knowledge, in this context. Although the argument has been presented in other briefs, making that argument is best left to ideological hack operations like Heritage Foundation. The OSG, responsible for appellate argument/briefs on behalf of the federal government, enjoying a long and respected reputation for professionalism, would have been tarnished by making the argument.

    A few observations concerning the Free Speech argument:

    (1) The Free Speech argument hinges on the question of whether baking a custom-designed cake for a wedding constitutes “speech” within the meaning of the Free Speech clause of the First Amendment. Neither the OSG nor Cato argues that “off the shelf” cakes constitute “speech” within that context, but argue that a custom-designed cake does. Assuming that the Supreme Court adopts that line of argument, it will be interesting to see what courts do with the hybrid middle ground between the two — “unique designs … previously created” (to quote the OSG statement of facts) but not created for the event at hand. Are these hybrids “custom-designed” or “off the shelf”?

    (2) As Olson points out, the Free Speech argument is “religion neutral”, that is, protects religious and non-religious speech alike. The argument is also “issue neutral” and “class neutral”, protecting all speech by all persons about all subjects. It protects conservative Christians who refuse to bake cakes for a same-sex wedding, a mixed-race marriage or a remarriage after a divorce. It protects a racist who refuses to bake a cake for a “Family of Thomas Jefferson” reunion including the African-American descendants, it protects anti-semites who refuse to bake cakes for Bar Mitzvah or Bas Mitzvah celebrations, it protects moderates who refuse to bake a cake for an Alt-Right anti-government event, it protects the crank who refuses to bake a cake for a Police Association annual fundraiser because a cop disrespected his dog twenty years ago, and so on. All in all, it seems to meet the “equal means equal” tests.

    (3) To my mind, seeing the OSG adopt the Free Speech argument while ignoring the Free Exercise argument is a welcome change from Republican legislative efforts to protect so-called religious freedom to discriminate against gays and lesbians and gays and lesbians alone. I’m not ready to celebrate AG Jeff Sessions as “the most gay-supportive Republican Attorney General ever in history”, but at least he doesn’t seem to have intervened to force the OSG to make the absurd Free Exercise argument. That’s a good thing.

    • posted by JohnInCA on

      “The Free Speech argument hinges on the question of whether baking a custom-designed cake for a wedding constitutes “speech” within the meaning of the Free Speech clause of the First Amendment. “
      Even that argument passes muster (I’m skeptical), I don’t see how that applies to the cases in question seeing as service was refused before the cake was discussed. You can’t seriously claim that you’re rejecting “speech” if you don’t wait long enough before rejecting to find out what the “speech” is.

      This argument can only help the bakers and florists and so-on if they *also* argue that making a cake, irrespective of any actual details of the cake, is “speech”. And if they argue *that*, then they pretty much killed the notion that we’re talking about “expressive services”, aren’t we?

  2. posted by Lori Heine on

    This is an unusually transparently political issue, ginned up for the sake of those vying for power. It doesn’t merit anywhere near the amount of attention it has gotten. Because it’s at least 90% nonsense, it’s getting tiresome.

    Most LGBT people could not care less whether someone who doesn’t want to bake our cake refuses to serve us. I stopped letting myself be jerked around by Gay Left Inc a long time ago, so I refuse to be a good little puppet and get outraged about it. The wedding industry is probably the gayest in the country, so they could not have picked a cause more transparent in its fraudulence.

    This site is nothing but a pep rally between rival power teams. The bloggers rah-rah for the Elephants, and their detractors shake their pom-poms for Team Donkey.

    Yawn.

  3. posted by db on

    The Cato Institute generally avoided gay rights until 2003. I glad they came to the party, but they are late to the game.

    The USSC said that exotic dancers were not protected by the First Amendment and that Independent and third party candidates have almost no First Amendment right to exist….but cakes made to order may have such freedom of speech/expression.

    The lack of legal consistently is eye opening.

    • posted by Tom Scharbach on

      The Cato Institute generally avoided gay rights until 2003. I glad they came to the party, but they are late to the game.

      Cato has pretty much been a wannabe in terms of the case law on gay rights.

      Stephen and other Cato sycophants have been the line that Justice Kennedy was influenced by the “influential” Cato brief in Lawrence, but the cite was to a historical summary in the brief, not to the brief’s reasoning or legal analysis.

      I’m not aware of anyone independent of Cato who seriously believes that the Cato briefs influenced any of the justices’ opinions on the merits in either Lawrence or Obergefell, and the Cato brief in Masterpiece is more or less a come-along the OSG brief.

      In any event, Cato’s briefs in Lawrence or Obergefell didn’t change the minds of any of the conservative justices on the Court in either case, and those justices, presumably, would be the targeted audience for Cato

      • posted by Jorge on

        I would agree with respect to Lawrence v. Texas.

  4. posted by db on

    I would point out that its very easy to draft civil rights laws for LGBT people, which would have reasonable exceptions for these sort of situations.

    The problem is that any effort to pass a “gay rights bill” is opposed by a well funded right-wing spin machine.

    The result is that a Federal gay rights bill has gone nowhere since the 1970s, despite quite a bit of strong support in the polls.

    At the State and local level we see a similar game.

    We saw this with the local Houston Bill and the bathroom bills

    • posted by Jorge on

      ……………

      Sorry, I don’t think that’s the whole picture.

      It’s very easy to create a reasonable gay rights bill, that is true. The problem isn’t only that the right wants no gay rights bill. The problem is also that the left wants a perfect gay rights bill.

    • posted by JohnInCA on

      I would point out that its very easy to draft civil rights laws for LGBT people, which would have reasonable exceptions for these sort of situations.
      … why?

      Think about it. That sort of “compromise” legislation only matters if you don’t have enough legislators to vote for a “clean” bill, but there’s enough people in the middle that can be persuaded with enough exceptions. What state legislature do you think that describes?

      Keeping in mind that the party leadership gets to decide if the bill goes up for a vote at all, meaning that even if it only takes a small number of Republican defectors to help the Democrats pass the supposed “compromise”, party leadership has to *let it happen*.

      So… what state do you think this would make a difference in?

      And if you’re not talking about this as a practical approach, but as a philosophical one, then either (A) you’re talking about “reasonable exceptions” that only apply to gay people, are passable in some places, but are morally void because they single out gay people for discrimination, or (B) you’re talking about “reasonable exceptions” that apply to all protected classes, and are impossible to pass.

      So… where do you see this actually helping anyone?

      • posted by Jorge on

        Think about it. That sort of “compromise” legislation only matters if you don’t have enough legislators to vote for a “clean” bill, but there’s enough people in the middle that can be persuaded with enough exceptions. What state legislature do you think that describes?

        New York’s 🙁

        Depending on the issue. Not gay rights.

        • posted by JohnInCA on

          New York successfully voted on a “clean” bill in 2002.

  5. posted by David Bauer on

    Look behind you! A three headed monkey

  6. posted by David Bauler on

    I think that civil rights laws have to respect the Constitution.

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