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Free speech would be the icing on the cake


The Mission Trace Shopping Center at Lakewood is a rather featureless out-of-town shopping mall, like thousands of others in the US, owned by an equally featureless real estate company in a leafy middle-class suburb of Denver, Colorado. On June 4 it had its moment in the limelight, since it found itself at the centre of a fight between old-fashioned conscience and twenty-first-century equality. Pâtissier Jack Phillips, a born-again Christian with a shop in the mall, had declined to provide a wedding cake to a gay couple. The couple cited their right to equality; Mr Phillips cited his conscientious objection to being asked to lend his support to a same-sex marriage, and invoked his constitutional rights to free speech and exercise of religion. The state courts sided with the couple. On Monday the US Supreme Court supported Mr Phillips. For those who like reading legal judgments, it is here.

Conscience therefore won out, and rightly so. But if you read the decision, you will see that any joy needs to be tempered. In deciding against Mr Phillips, an annoyed State bureaucracy had made quite clear its official contempt for his brand of religion and thus infringed his right to exercise it freely. The court chose, with the tact if not the wisdom of Solomon, to limit its decision to that point, and to leave to another time the question of whether forcing the cakemakers of America to bake for all happy couples without discrimination amounted to unacceptable forced speech.

This is a pity, since the answer should not be hard. If this couple had demanded a cake with writing on it extolling the wedding of two men, that would clearly have been objectionable as an attempt at forced speech. But speech must go beyond what is said and written. If I provide to organisers of an event a one-off artistic creation into which I have put my own personality – a cake, a triumphal arch, a musical composition – this may quite reasonably be taken as endorsing it; and it is equally wrong to expect me to do this contrary to my conscience. That was exactly Mr Phillips’s position. He was not a mere distributor of cakes for cash by the thousand in the style of Walmart, but (as a glance at his shop’s website will reveal) essentially an artist; and the State of Colorado was peremptorily demanding that he exercise his art for a cause he disapproved of.

Such an argument also strongly suggests that this is precisely the point where conscience should take over from discrimination law. In a pure cash-for-commodities transaction it may well be right to stop sellers saying that gay, or black, or female, or Muslim money is not as good as anyone else’s; we should not be too worried if a wine merchant is bound to provide vintage Krug, or a caterer starched napkins and tablecloths, for ready money without discrimination as to who comes up with it or what they intend to do with what is supplied. But this was emphatically not the case here; any suggestion that this was a case about ‘just a cake’ is guilty of legal philistinism (and, dare we say it, lack of romance).

One of the things that makes US Supreme Court decisions stimulating reading is the ability of individual judges to write their own judgments. This case is no exception. There was one judge (whose opinions are always worth reading) who concurred in the result, but rightly refused to limit his comments to the legality of the attitudes of the Colorado state administrators. He correctly saw this case as being wholly about speech and conscience, and not about discrimination and equality. His judgment is well worth reading. The irony will, one suspects, not be lost on TCW readers that the judge concerned was Justice Thomas – the one African-American on the Supreme Court bench.

Does all this matter to us? The answer of course is Yes. Wedding cakes are in the legal news on both sides of the Atlantic. Readers will recall that our Supreme Court last month heard an appeal by Ashers Baking Co in Belfast, which had been held liable under UK and Euro-discrimination law for refusing on admittedly conscientious grounds to provide a cake for a gay couple with the explicit wording ‘Support Gay Marriage’ on it. The US has at least seen the problems of forced speech in this context, and the case would have caused little difficulty there. We have not even got that far, as I pointed out here. We now have at least a chance to play catch-up. Judgment in the Ashers case is expected later this year. It’s always good to hope, but American ideas on liberty are hardly flavour of the month with our establishment, and I wouldn’t advise you to hold your breath.

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Andrew Tettenborn
Andrew Tettenborn
Andrew Tettenborn is a professor of commercial law at a well-known UK university, who also teaches in Europe and elsewhere. In the 2001 General Election he stood as Ukip’s candidate in Bath.

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