Symbolic Speech

The owner of Masterpiece Cakeshop in Colorado, Mr. Phillips considers himself a “cake artist” and a sincere Christian. His “calling” as a cake artist inspired
him to produce custom-made wedding cakes of great beauty and complexity; his calling as a Christian (as he understands Christ’s teachings) compelled him
to refuse to create custom-made wedding cakes that would celebrate same sex marriage. Unfortunately for Mr. Phillips, the people of the state of Colorado,
acting through their elected representatives, told him that he must either create custom-made wedding cakes for all individuals who can be legally married in
America, or cease to create custom-made wedding cakes for anyone, thus effectively crippling his business and preventing him from supporting his family in
the way he knows best.
Of course, it could well be said that the choice Mr. Phillips faced is a choice faced by any individual living in a jurisdiction that has anti-discrimination laws
with which the individual happens to disagree. Presumably, a baker in America who sincerely believed that interracial marriage was immoral, and who
refused to create wedding cakes celebrating that type of marriage, would face the exact same choice faced by Mr. Phillips.
In June of 2018, the Supreme Court weighed in on the choice faced by Mr. Phillips when it decided the Masterpiece Cakeshop v. Colorado Civil Rights
Commission case. While the Supreme Court’s opinion resolved the issue in favor of Mr. Phillips it did so not based on free speech but that he was
discriminated against by the Colorado Civil Rights Commission (CCRC). The opinion by former Justice Anthony Kennedy argues that the members of the
CCRC acted with animus toward Mr. Phillips’ religion when they made their decision. This leads me to ask: if a different Colorado Civil Rights Commission,
made up of a wholly different set of commissioners, were also to decide that Mr. Phillips must create custom-made wedding cakes for same sex couples, but
were to come to that decision without in any way evidencing animus toward any religion whatsoever, would that decision be valid?
While the Supreme Court did not use Masterpiece Cake to answer the question of whether artistic expression through cake making, or flower arrangement, is
considered “speech” under the First Amendment, there are other cases working through the federal judiciary that address this issue. At some point in time,
the Supreme Court will answer whether a business may refuse to offer its services to its customers because of the sincerely held religious beliefs of the
owners. This issue underscores a conflict between freedom of speech and its associated right of the freedom not to speak against anti-discrimination laws.
Further, the Supreme Court must consider whether business practices that involve some artistic expression, even if they are commissioned acts of
expression, should be considered speech? In a wedding and reception there are many business practices that contain artistic elements, from cake baking to
floral arranging to hair styling to dinner making. Are these commissioned practices speech?
This discussion board question asks you to consider the 2018 Masterpiece Cakeshop v. Colorado Civil Rights Commission case. For this question, I want you
to focus on Justice Clarence Thomas’s concurrence in the case. Of the five separate opinions in the case, Justice Thomas’ is the one that most clearly and
forcefully engages the free speech issues involved in this dispute. The other opinions focus more on the religious aspects, and hence the “free exercise”
issues, involved in this dispute.
Justice Thomas argues that it is well settled that the First Amendment gives you the right to speak—and to refrain from speaking; the right to express
yourself—and to refrain from expressing yourself. Justice Thomas also claims that it is well settled that if the government wishes to pass a law that directly
prevents you from expressing yourself or directly compels you to express yourself, the government must demonstrate that the law in question withstands
“strict scrutiny,” meaning that there is a compelling state interest in having the law, and that that interest cannot be met in any other way.
Referring specifically to Mr. Phillips’ refusal to create a custom-made wedding cake for a same sex couple, Justice Thomas writes, “Because Phillips’ conduct
(as described by the Colorado Court of Appeals) was expressive, Colorado’s public-accommodations law cannot penalize it unless the law withstands strict
scrutiny.” And then Justice Thomas provides the following analysis, which I want you to consider very carefully. He writes, “Although this Court sometimes
reviews regulations of expressive conduct under the more lenient test articulated in O’Brien, that test does not apply unless the government would have
punished the conduct regardless of its expressive component. See, e.g., Barnes, 501 U. S., at 566–572 (applying O’Brien to evaluate the application of a
general nudity ban to nude dancing); Clark, 468 U. S., at 293 (applying O’Brien to evaluate the application of a general camping ban to a demonstration in the
park). Here, however, Colorado would not be punishing Phillips if he refused to create any custom wedding cakes; it is punishing him because he refuses to
create custom wedding cakes that express approval of same-sex marriage.”
Thinking specifically about the passage I have just quoted; I would like you to answer the following questions:

1. First, what, specifically, is the O’Brien Test to which Justice Thomas is referring? I want you to state and explain the four prongs of the O’Brien Test.
2. Second, which prong or prongs of the O’Brien Test does Justice Thomas appear to believe were incorrectly applied by Colorado in this case. In other
   words, in Justice Thomas’ mind, what prong or prongs of the O’Brien Test, when correctly applied, distinguish Mr. Phillips’ case from the case of Barnes v.
   Glen Theatre, Inc. or Clark v. Community for Creative Nonviolence?
3. Third, do you agree or disagree with Justice Thomas’ analysis on this point, and why? In your opinion, should Mr. Phillips be required to bake custom-made
   wedding cakes for same-sex couples if he makes them for opposite-sex couples? What is your reasoning to support your position?
   Your response of no more than 500 words