Pundits are referring to the Supreme Court’s reversal of Colorado Civil Rights Commission ruling punishing a baker for his refusal to bake a wedding cake for a gay couple as “narrow.” Well, the justice’s relied on the fact that the Commission was clearly biased against and hostile to the baker’s religious beliefs in ruling that such hostility ran afoul of the First Amendment’s free exercise clause. Every justice noted that states may protect homosexuals from discrimination in the marketplace, but the 7-2 majority ruled that that other persons’ sincere religious beliefs must be given due regard as well. Call that “narrow” if you wish, but it’s still a win for the First Amendment.
Because the record below was unclear on the baker’s free speech claims, the Court’s majority opinion didn’t address them in its decision. The justices didn’t need to in order to rule on the case. However, Justice Thomas did address that issue in his concurring opinion. He noted that public accommodation laws govern acts of discrimination, and that when they attempt to regulate speech, they run up against the full force of the First Amendment’s free speech clause. Boy Scouts of America v. Dale, 530 U. S. 640, 657–659 (2000). Justice Thomas noted that the Colorado Court of Appeals finding that the baker’s refusal to speak (i.e., create the wedding cake as Civil Rights Commission had ordered) amounted to illegal conduct was clearly wrong:
Even after describing his conduct this way, the Court of Appeals concluded that Phillips’ conduct was not expressive and was not protected speech. It reasoned that an outside observer would think that Phillips was merely complying with Colorado’s public-accommodations law, not expressing a message, and that Phillips could post a disclaimer to that effect. This reasoning flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak.
Today was a good day for the First Amendment.