Relative Harms

                                       Jack Phillips Painting a Masterpiece Cake

 Some commentators argue that the First Amendment should not be construed to protect free speech or religious liberty that causes harm to third parties. Thus, in Masterpiece Cakeshop, Jack Phillips should not be protected by the First Amendment because his refusal to create wedding cakes celebrating same-sex marriage caused "harm" to the gay couple whose request for a wedding cake was refused. What was the nature of the harm? Moreover, some commentators assert that the harm suffered is even more severe when the objection to providing the service is based upon a religious belief that the customer's conduct is sinful.

What are your thoughts about this? 

Is this a case in which there is harm on only one side?

If religious liberty must be suppressed when it causes harm to gay couples, should public accommodations laws be suppressed when they cause harm to wedding vendors? What harm did Jack Phillips suffer when he was ordered to create custom wedding cakes celebrating same-sex marriage? And who inflicted that harm on Jack?

As Professor Stephanie H. Barkley explains, “someone will always experience a cost or harm when government acts to protect, or not protect, any constitutional right.” Therefore, she argues, “we must broaden our lens to observe harms on both sides of the scale.”

If we look at harms on both sides of the scale, which party suffers the greater harm?

Let's talk about this in class.