. . .
I'll give another example. Say a pagan or group of pagans comes to a Jewish-owned and operated kosher bakery and asks for a cake in the image of Poseidon, frosted with his praises. They normally do a variety of custom cakes. Do they have the right to say no in your view? If so, on what basis?
I'm Pagan, so we'll say this hypothetical Pagan is me. And let's say that instead of Poseidon I'm getting a wedding cake. This cake is for my
handfasting ceremony and I'm visiting multiple cake shops with my fiance to find the one that suits us best. We're visiting this particular shop because we've seen it has good review on Yelp and we neither know nor care what religion the owner of the shop adheres to. They don't advertise as a "Jewish cake store", just that the cakes they bake are kosher. Maybe they also advertise that they have
gluten-free cakes. Now let's say that the baker sees my fiance's pentacle necklace and refuses to bake a cake to be used in a Pagan wedding before we've even discussed how it should be decorated.
Now we have a much more realistic scenario that is comparable to the current controversy and the facts of the court case in Colorado.
Could this cake store refuse to bake our wedding cake on religious grounds?
No. The preparation of a wedding cake is not necessarily a medium of expression amounting to free-speech, and a court compelling a cake shop to treat Jewish couples and Pagan couples equally is not the equivalent of forcing them to adhere to an ideological point of view. There is no doubt that decorating a wedding cake involves considerable skill and artistry. However, the finished product does not necessarily qualify as "speech," as would saluting a flag, marching in a parade, or displaying a motto.
United States v. O'Brien, 391 U.S. 367, 376 (1968) ("We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea.")
The baker categorically refused to prepare a cake for our wedding before there was even any discussion of what the cake would look like. He was not asked to apply a message or a symbol to the cake, or to construct the cake in any fashion that could be reasonably understood as advocating Paganism or Pagan marriage. The act of preparing a cake is simply not "speech" warranting First Amendment protection.
Compelling a bakery that sells wedding cakes to Jewish couples to also sell wedding cakes to Pagan couples is incidental to the state's right to prohibit discrimination on the basis of religious affiliation, and is not the same as forcing a person to pledge allegiance to the government or to display a motto with which they disagree. To say otherwise trivializes the right to free speech.
This case is also distinguishable from cases like
Barnette and
Wooley because in those cases the individuals' exercise of free speech (refusal to salute the flag and refusal to display the state's motto) did not conflict with the rights of others. This is an important distinction. As noted in Barnette, "The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin."
Barnette, 319 U.S. at 630. Here, the refusal to provide a wedding cake to us directly harms our right to be free of discrimination in the marketplace. It is the state's prerogative to minimize that harm by determining where the baker's rights end and our rights begin.
Could this cake store refuse to decorate our wedding cake with images of Greek deities?
Yes, but we were refused service before decoration was discussed. We were refused a cake regardless of what images, symbols, or words it was adorned with.
The Jewish baker is also free to refuse to decorate his cakes with anti-Semitic slogans or images. The baking and selling of a cake is not protected speech, but the
decoration of a cake can be considered protected speech.
