Thursday, April 08, 2021

Is a Custom Wedding Cake Speech?

 Was the custom wedding cake in Masterpiece "speech" or merely a commercial product? 

Here are a some facts to consider:

1. When Craig and Mullins visited Masterpiece Cakeshop, they "requested that Phillips design and create a cake to celebrate their same-sex wedding." 

2. The Colorado Civil Rights Commission ordered Phillips to “cease and desist from
discriminating against . . . same-sex couples by refusing to sell them
wedding cakes or any product [he] would sell to heterosexual
couples.” In other words, the order mandated that Phillips must
create custom wedding cakes celebrating same-sex marriages if he
creates cakes celebrating traditional marriages between one man and
one woman.

3. At Supreme Court oral argument in this case, Justice Ginsburg asked the gay couple’s
lawyer, David Cole, what would happen if Phillips would design a
wedding cake “that said: God bless the union of Ruth and Marty.”
Cole replied: “[T]hen he would have to say God bless the union of
Dave and Craig”
because otherwise it would constitute
discrimination on the basis of sexual orientation. Thus, the
Commission’s order was so broad as to require Phillips to include
religious blessings on cakes celebrating same-sex marriages.

So did Colorado compel Phillips to speak via his custom wedding cakes? To quote Prof. Amar, are Phillips' wedding cakes symbols "that represent ideas, events, persons, places, objects, and so on."

If so, was this a content-based or a viewpoint-based compulsion of speech?

If you don't believe that wedding cake artistry is protected expression, what about the abstract paintings of great artists like Jackson Pollock. Is Pollock's  Number One, 1950 (Lavender Mist) protected expression under the Free Speech Clause?


 Here is how he painted this beauty:

"Pollock's method was based on his earlier experiments with dripping and splattering paint on ceramic, glass, and canvas on an easel. Now, he laid a large canvas on the floor of his studio barn, nearly covering the space. Using house paint, he dripped, poured, and flung pigment from loaded brushes and sticks while walking around it. He said that this was his way of being "in" his work, acting as a medium in the creative process. For Pollock, who admired the sand painting of the American Indians, summoning webs of color to his canvases and making them balanced, complete, and lyrical, was almost an act of ritual. Like an ancient cave painter, he "signed" Lavender Mist in the upper left corner and at the top of the canvas with his handprints."

 

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