One of the amicus briefs opposing Jack
Phillips in this case, one written by First Amendment scholars I admire, candidly
admits that the government may not compel persons who create speech or artistic
expression,
such as painters, photographers, videographers,
graphic designers, printers and singers, “to record, celebrate. or promote
events they disapprove of, including same-sex weddings.”
But somehow this brief concludes that free speech
protection does not extend to bakers such as Jack Phillips. Cake is food--not speech--they argue.
Surely, a pizzeria can’t claim its pizzas or
breadsticks involve first amendment expression.
A McDonald’s cheeseburger is just a cheeseburger—it
may not even be that.
A business that rents chairs and tables and
tablecloths is not an expressive business.
So much depends on the facts.
In the oral arguments in this case, Solicitor
General Francisco, argued that Jack Phillip’s custom cakes “are essentially
synonymous with a traditional sculpture except for the medium used” (cake dough
rather than clay or marble).
Phillips also paints using cake as his
canvas.
So, suppose a same-sex couple
asked Jack Phillips to do two things:
1. sell them some croissants to feed guests at the pre-reception lunch;
and
2. to create a custom-made wedding cake to serve as the centerpiece of the
iconic cake cutting ceremony celebrating their wedding and marriage.
Under the predominantly
speech vs. utilitarian test, how would these two cases come out?
