Everyone should be able to have their First Amendment cake & eat it too (GUEST RESPONSE)

Jeremy Tedesco, Esq, Alliance Defending Freedom

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.


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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  1. Thank you Mr. Tedesco for making a complete mockery of 1st Amendment religious freedoms and all notions of equal protection under the law.

    Evidently being Christian means one never has to follow laws of general application. They are allowed to follow any laws they like and ignore all others.

    Refusing to provide service to someone for a business open to the public is a malicious act and a public harm. It is an act that was never considered free speech or religious expression.

    Maybe you should have read up on cases like
    Katzenbach v. McClung (1965) which stated that discriminatory conduct in business is something which the government has every right to prevent. Private interests must be subordinate to the interests of open commerce in such situations.

    or Romer v. Evans (1996) which stated that laws specifically targeting removal of civil liberties of others (such as a right not to be discriminated against) lack even the most rational basis.

    Discrimination in business is tortious behavior. Something never covered by various civil liberties. Claiming it is just “refusing to affirm” the customers is just a reframing of the same action. Telling a customer, “No Gays Allowed!” Your right to free exercise of religion ends where it harms others. Much like your right to free speech doesn’t cover fraud or forms of defamation.

    Permitting such behavior is an attack on public interests in keeping commerce open. The government’s interest in regulation of commerce is far more important than the interest in acting badly to others. Especially since such actions were never considered covered under the aegis of religious expression or free speech.

  2. Religious expression according to the author:

    Its not refusing to serve a customer, its expressing one’s religious belief not to affirm your views on open commerce.

    It is not firing someone because of prejudicial reasons, it is expressing one’s religious belief not to affirm your views about earning a living and having money.

    It is not refusal to give medical treatment, it is expressing one’s religious belief not to affirm your views about breathing.

    It is not refusal to provide housing, it is expressing one’s religious belief not to affirm your views about keeping your stuff in one place and a roof over your head.

    “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?”

    Do you have real life examples of these? You bet he doesn’t.

    Nonsense hypotheticals to counter very real, very harmful actions done to turn a customer away in an uncivil and malicious manner.

  3. Larry accuses Tedesco of making a mockery of the First Amendment by himself regulating it to irrelevance. The entire reason we have a Bill of Rights is to protect citizens from oppressive actions the state thinks are really really necessary for its own interests. Commerce does not nullify civil rights. Your right to commerce ends when it oppresses my Constitutional rights.

  4. One real life example was given, of a pro-ssm baker refusing service based on a customer’s religious views. The other examples haven’t happened yet because of the historic understanding of first amendment rights – from which some courts are moving away and causing problems.

    One could also take issue with the concept that having to go to the baker next door constitutes something “very harmful” to an adult with any sense of reality.

  5. Perhaps you should read the case mentioned above and the cases you mention in your post. You misquote the case, arbitrarily name call to miscategorize so suddenly the 1st Amendment need not apply and then misapply cases to attempt to prove your point.

  6. Poor Larry, religious conscience does indeed apply to the medical field. Our country is wonderful like that. And again, poor Larry, yes, there are examples out there. You should probably read up a little better. But the best part? You say the author puts forth nonsense hypotheticals, but you take your own to such an absurdity that they don’t even apply to the conversation. But thank you for the laugh. It was a nice little break.

  7. So permitting people to discriminate (ie to persecute) under the color of law is protecting citizens from oppressive actions of the state? Not even close. You support oppressive actions by the state by permitting private actors to persecute others under the alleged guise of religious belief. There is no interest to the public in permitting a right to persecute others.

    Tedesco and company want a right to persecute but claim similar actions against them would be persecution. Hypocrisy knows no bounds.

    I think you have to expand your base of knowledge a bit and look to something in addition. The 14th Amendment and the notion of equal protection under the law. Rampant discrimination is the very opposite of such notions.

    You never had a right to discriminate in business. The constitution is of no help here for you.

    There is no civil right to attack others. Makes no difference if one is motivated by pure malice or religious doctrine. Discrimination is an attack upon others. Commerce is worth protecting over a fictional right to do others harm in the name of your God.

  8. Tedesco is exaggerating and misrepresenting facts. Its what he does on a regular basis as part of the Alliance Defending Fundamentalists.

    The 1st Amendment never gave you a right to attack others. That is what you seek when you want religious exceptions to anti-discrimination laws. A right to attack, insult and demean people with the protection of the state. The very opposite of what civil liberties are.

    You should be ashamed for trying to invoke religious freedom for actions so loathsome.

  9. Too bad that was not what happened. As usual you have to lie to pretend fundamentalist christian bigots are being persecuted.

    The baker was given an unreasonable request but tried to accomodate the bigoted customer. She was willing to bake the cake and give the customer the means of making their own message in the icing. One does not have a right to expect unreasonable extraordinary efforts from a business. Unlike baking a wedding cake as one does ON A REGULAR BASIS. This is a far cry from the bakers who refused to provide any kind of service to the gay couple.

  10. Ann, show me where it is remotely conscionable to refuse to treat a patient based on one’s personal prejudices?

    I am not even talking about the law here. I am talking about adherence to principles of medical professionalism. I am talking about basic human decency.

    You obviously have none.

  11. Everyone is making this about same sex marriage. What if a Christian cake baker has someone approach them about making a cake to look like the devil, or some other satanic figure? Or a cake that looks like a suicide bombing scene? Or how about a Swastika? Or any other item that would go against my religious beliefs. I’m sure the government wouldn’t step in and force them to do it or fine them.

  12. We had that example from real life. See my comment from Jan 29 @ 6:55 PM

    The baker was willing to bake the cake and give the customer instructions and materials for their own lettering and icing. This way the customer was being served but the offensive writing would not be by their hand. The customer claimed foolishly he was being discriminated against. The case will fly like a ton of bricks. There is a great deal of difference between a special request and what is normally done in the course of business.

    A civil, polite, baker not intent on acting like a self-righteous malicious derp, would simply tell the customer, “we don’t have the molds for handling that kind of request”. “It would take up too much of my time and skill to do by scratch.” “I am too busy to attempt it.”

    Contrast this with the gay couple who were refused ALL service on the basis of being gay and the business being prejudiced against them. The bigoted Christian baker did not even attempt to serve the customer or make some kind of civil accommodation, like the other baker did. They simply said, “we don’t serve your kind”.

    If your religious beliefs keep you from transacting the business you normally make a living out of, and would do no differently from any other customer, you should close your doors. You do not belong in open commerce serving the general public. Religious beliefs do not entitle one to harm the public with discrimination in open commerce.

  13. The cake decorator is attacking someone by refusing to acquiesce to a request that is against their religious beliefs? What is next? Not the right ‘look’? Thought, perhaps? Take hold of yourself, you’re wondering into lalaland.

  14. Garbage, inform yourself before taking the homosexualist media reports seriously. The customer simply wanted verses from the Bible on a Bible-shaped cake. He didn’t seek to have the hateful words which were cited by the erroneous media reports.

  15. Liar.

    Anyone can look up the story and get the facts here. Your attempt to spin the story is laughably ridiculous. Even Fox News thinks you are full of crap.

    “Silva said the man showed her a piece of paper with hateful words about gays that he wanted written on the cake. He also wanted the cake to have two men holding hands and an X on top of them”
    “It was what Jack wanted her to write on the cake: Anti-gay phrases including “God hates gays” and an image of two men holding hands, covered in a big, red “X.””


  16. Yes. The person is denying business which is normally available to the rest of the public by doing so. Discrimination in commerce is attacking someone. This is why it carries civil and criminal penalties. Just because the object of discrimination changes, it doesn’t change the nature of the act.

    It was considered such when businesses refused to serve people of color or of certain ethnicities, it is so when the customer is gay. Just because your bigotry is wrapped in religious belief, it doesn’t make it any more acceptable.

    Having a business open to the public means you have to serve the public. If your religious beliefs keep you from serving a customer for a request which is normal for the business, you should shut your doors. You are unable to carry on business like a normal sane person.

    There is no religious right to discriminate in a business open to the general public. There is no religious right to attack others. You are not being persecuted by not being allowed to persecute others. You have no concept of what religious freedoms are.

  17. Amen Dania!! From what I have read about a cake family business along with other privately owned businesses many of them say that they had to shut down their business due to threatening attacks against them from the ones who cry because they didn’t get their cake made or photo took all because of “their rights.” True Christians don’t go out looking for evil and hate towards others but you can believe it comes full force after God’s children. We’re “in love” with God Almighty, Our Creator. Not “in love” with the sin of homosexuality that has caused a lot of discrimination arguments just because of a cake, photo, or whatever refusing to be made because we don’t live nor agree to that lifestyle. We have NO rights, but those who go screaming their rights are violated, because we live by God’s Holy Word and won’t partake in their lifestyle get dragged through the mud by court fines, threats on our lives, businesses closed which means no money to feed our children, etc… Now please tell me, whose being attacked here?

  18. At least they were going to have a cake made. Do you think they would make me one with the writing “Homosexuality is an abomination against God?” YOU bet NOT!

  19. Larry, I pray your eyes will be opened to the truth of God and not have to stand before Him begging for mercy all because you believed a lie and were blinded from the truth due to satan, the father of lies. All the comments and arguments to support something God is against won’t matter when God has no other choice but tell you He doesn’t know you. And if you ask why, then He will remind you of many things/times in your life when He gave you chances to make things right with Him but you rejected Him. Including these comments you made. Your mind will be flooded in deep despair by them for all eternity. That’s a long time to realize you were wrong and the ones standing for God and our beliefs were right but then it’s to late. I’m praying for you Larry from a sincere loving heart. I pray you have the chance to accept His Salvation and be set free from the sins you are condoning. He didn’t come here because He hated you or anyone else who hate Him and refuse His love every single day. In fact, He came here and laid down His life for you because He loves you. Period. Please accept His love through repentance and Salvation into your life and live in joy, peace, and love that comes only from Him. It’s a far better choice my friend. God Bless you <3

  20. The Colorado baker did offer to make any item other than a wedding cake for the couple. This is where I don’t understand the discrimination accusation. This baker would have willingly served everything else to the couple, but because he felt he couldn’t participate in a gay wedding, he is accused of discrimination.

  21. I see this as the perfect definition of “the slippery slope.” This baker is using his first amendment right to artistic expression as his defense to exclude a particular customer base. If the baker has a right to exclude customers based on his right to artistic expression, what’s to say a surgeon doesn’t consider his craft artistic and begins to select his patients based on some bias he possesses? This thought struck me today when I googled the definition of artist and saw the following as the 2nd of 4 definitions: a person skilled at a particular task or occupation. “a surgeon who is an artist with the scalpel”. When I had cancer, I looked for the most skilled surgeon, not one that agreed with my biases. Thank God I found a good one.

    The Supreme Court has already determined that a restaurateur – no matter how artistic his culinary creations – does not possess the right to discriminate based on personal or religious bias. Many churches in the 60’s still held that separation of the races was a Biblical “truth,” but the Supreme Court determined that it was unconstitutional. So I’m confused how this is different.

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