Jeremy Tedesco, Esq, Alliance Defending Freedom

Guest post by Jeremy Tedesco, Alliance Defending Freedom

In a Jan. 26 post, Tobin made some observations about the way courts are currently deciding cases involving the conflict between First Amendment rights and same-sex marriage.  He graciously agreed to post a response.  I have addressed each of his observations in turn.

1. Public accommodations or not, private business owners who create expressive products are protected by the First Amendment.

Cake artists, florists, photographers, and many others who operate businesses that create expressive products have First Amendment rights.  They do not give them up just because they operate a business for profit.  Does a pacifist painter who opens a small business and sells her artistic services to the public have a First Amendment right to decline to paint a pro-war mural for a Gulf War veteran planning a celebration for fellow veterans?  Absolutely, despite a local law that bars discrimination against veterans.  Does a gay print shop owner have a First Amendment right to decline to print pro-marriage t-shirts for a Church conference celebrating one-man one-woman marriage?  You bet, even though a local law bars religious discrimination.

The First Amendment rights of business owners are well-established.  The problem is that some advocacy organizations (and currently some courts) refuse to extend those rights to people with certain views.  For example, the ACLU is aggressively pursuing a lawsuit against Colorado cake artist Jack Phillips for declining to use his artistic talents to design and create a cake that celebrated a same-sex wedding because doing so would violate his religious beliefs.

But the ACLU says that another Colorado cake artist can refuse to create a cake that references biblical teaching about sex and marriage based on “her standards of offensiveness.”  In other words, only cake artists with “the right views” on marriage and sex can exercise their First Amendment freedoms. Basically, the ACLU is saying First Amendment rights are not for everyone, an argument that should make all freedom-loving Americans recoil.

2. They also express their own views, but even when they don’t they are fully protected by the First Amendment.

Expressive businesses do express their own views.  Photographers and videographers tell a story through images.  And cake artists speak as well.  Celebrity cake artists Duff Goldman and Buddy Valastro have written publicly about their edible art and the significant expressive work that goes into the artistic design process for wedding cakes.  The same is true for the two Colorado cake artists mentioned above.

But decades of case law firmly establishes that the First Amendment protects speakers even if their sole role is to distribute messages that others create, and even when they earn money for conveying those messages.  If the rule were otherwise, our pacifist painter in the hypothetical above would be compelled to paint a mural glorifying war.  Happily, that is not the America we live in.  But sadly, some want to deny this right to certain people and compel them to use their artistic talent and abilities to create expression they find morally objectionable.  This indentured servitude of the mind has no place in our rich constitutional heritage

3. Under current public accommodation laws, they will be punished for voicing their views even while providing services.

Sadly, it is simply inaccurate to say that business owners with conscientious objections can express those views to the customer and the world, while still creating the objectionable product.  Why?  Many nondiscrimination ordinances make it illegal to express these views.  Colorado’s state statute, for example, makes it “unlawful” to “directly or indirectly … publish, circulate, issue, display, post, or mail any written, electronic, or printed communication, notice, or advertisement” that would make someone feel “unwelcome, objectionable, unacceptable, or undesirable” based on many different characteristics, including sexual orientation.

Colorado’s law, like so many others, doubly infringes the First Amendment by compelling business owners to create messages they object to and barring them from expressing their opposition to the message itself.

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We frequently see the refrain that private business owners’ rights must yield to state or local “civil rights” laws.  But the First Amendment is the original and pre-eminent civil rights law of our nation.  It protects God-given freedoms that no civil authority can take away, like the rights to free speech and the free exercise of religion.  No matter how enlightened politicians may think they are, state public accommodation laws cannot trump the First Amendment.

Jeremy Tedesco is senior legal counsel at Alliance Defending Freedom. ADF represents artistic professionals and family businesses in numerous freedom of conscience-related legal matters.

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